Heirs of Hewitt v. Hampton ( 1880 )

Egan, J.

The lower court ruled correctly in admitting the evidence so far as it shewed the fact of Hampton’s possession and the character of it, and that Hewitt had voluntarily quitted the land and put Hampton in possession. The evidence was inadmissible to shew title to the land, but admissible for the other purpose, and must be considered as having been received for the purpose for which it was admissible. Advertisement of a lost instrument must be made before testimonial proof of its contents can be given. Rev. Civ. Code, Art. 2280. It is not true, as urged, that this applies only to personal contracts and obligations. It applies with greater force to obligations affecting the title to real estate. 2 A. 191; 11 A. 533; 12 A. 582; 16 A. 317. What is sufficient diligence depends upon the facts of each particular case. There is a discrepancy in the dates of the instrument alleged in the answer to have been lost, and that shewn by evidence to have been executed. There may have been too much particularity in pleading the exact date. Courts will incline to the reception rather than rejection of evidence tending to throw light upon the matter in controversy.

Judgment reversed and case remanded.