Samuels v. Borrowscale , 104 Mass. 207 ( 1870 )

Gray, J.

The law is well settled in this Commonwealth, that a party relying on a deed made immediately to himself or the other party, or which is presumed to be in the custody of either, must produce the original deed, or lay a foundation in the usual manner for secondary evidence; but that of other deeds, acknowledged and recorded in accordance with the statutes, a certified copy from the registry is original evidence, instead of the deed itself, and of course dispenses with calling an attesting witness or other proof of execution. Ward v. Fuller, 15 Pick. 185. Stetson v. Gulliver, 2 Cush. 498. Commonwealth v. Emery, 2 Gray, 80. Thacher v. Phinney, 7 Allen, 146. See also Brooks v. Marbury, 11 Wheat. 78; Dick v. Balch, 8 Pet. 30. The deed from the tenant to Augustus, from whom the demandant derived his title, was not made to, or presumed to be in the custody of, either of the parties to this action. The demandant was therefore rightly permitted to prove it by an office copy.

But we are all of opinion that the learned judge who presided at the trial erred in refusing to allow the tenant to testify that he had never executed such a deed. The office copy of a deed in which neither party to the suit was grantee, and to the custody of which neither was entitled, was primá facie original evidence, of the same degree, though not perhaps of the same weight, as the deed itself, and was liable to be rebutted by any evidence which would have been admissible to disprove the execution of the original deed, if that had been produced. There was, to say the least, no more reason for requiring that the " deed should be produced, or its nonproduction accounted for, by the tenant, who did not claim under the deed, and denied that he had ever executed such an instrument, than by the demandant, who asserted its genuineness and claimed title under it.

Upon the question of disseisin, also, the learned judge seems to us to have held the tenant to stricter proof than the law required. All that is necessary to constitute disseisin is actual, adverse and exclusive possession, so open and notorious that it may be presumed to have been known to the rightful owner. The testimony of the tenant would have warranted the jury in finding that at the time of the conveyance from Augustus to the demandant the tenant was in the open and exclusive possession of the land, claiming it as his own against all persons whomsoever. Special notice to the demandant, either by act or word, that the tenant held in defiance of or repudiated his title, was not necessary. If the tenant’s possession was actual, exclusive, adverse, open and notorious, it was a disseisin, even if he did not know, (as his testimony tended to show that he did not,) that the demandant claimed any title in the premises. In Poignard v. Smith, 6 Pick. 172,178, the disseisees were out of the Commonwealth and bad no agent here; and it was argued that there was no disseisin, because they had no notice of any adverse claim; but the court overruled the objection, saying, “Acts of notoriety, such as building a fence round the land or erecting buildings upon it, are notice to all the world.” See also Parker v. Proprietors of Locks & Canals, 3 Met. 100,101 Miller v. Same, 5 Met. 33; Cook v. Babcock, 11 Cush. 206; Bradstreet v. Huntington, 5 Pet. 441, 445; Ewing v. Burnet, 11 Pet. 41. Exceptions sustained.