Johnson Ex Rel. Pritchard v. Heirs or Devisees of Pritchard , 302 S.C. 437 ( 1990 )

Sanders, Chief Judge

(concurring):

In my opinion, our Supreme Court, almost sixty-five years ago, recognized without qualification, a rule permitting the introduction of documents more than thirty years old as ancient documents. The case on which I rely is Atlantic Coast Line Railroad v. Searson, 137 S.C. 468, 135 S.E. 567 (1926). There, the Court affirmed the decision of the Circuit Court allowing a certain map to be introduced in evidence. Among the reasons given by the Court for affirming the decision was the fact that “the map itself was more than 30 years old, and in the discretion of the [Circuit] [C]ourt could be introduced as an ancient document.” Id. at 493, 135 S.E. at 574. No subsequent decision by an appellate court in this state, at least not any of which I am aware, has overruled or modified the holding in this case.

I am aware that respected treatise writers Professor Thames and Ms. Von Zharen, as well as Professor Reiser, have concluded that the rule in this state on ancient documents relates only to the authenticity of such documents and does not provide for an ancient documents exception to the rule against hearsay. See J. Thames & W. Von Zharen, A Guide to Evidence Law in South Carolina 58 (1987); W. Reiser, A Comparison of the Federal Rules of Evidence with South Carolina Evidence Law 54 (3d ed. 1987). They rely on the decision of the United States Court of Appeals in Town of Ninety Six v. Southern Railway, 267 F. (2d) 579 (4th Cir.1959). There, the Court held that “the [ancient documents] rule, except as it relates to documents purporting to transfer land or other property, deals only with the authentication of the document sought to be proved, and not with its competency or admissibility.” Id. at 583.

In my opinion, Town of Ninety Six should not be given undue weight. Although the case resolved a dispute which arose in South Carolina, the Court of Appeals did not purport to follow the law of this state pertaining to the admission or exclusion of evidence. (The holding of the Court was subsequently superseded by the adoption of Rule 803(16) of the Federal Rules of Evidence, specifically adopting an ancient documents exception to the rule against hearsay.) Moreover, the case has never been cited or even acknowledged by any appellate court in this state.

Searson is the only case decided in this state directly addressing the issue of whether statements contained in ancient documents can be introduced in evidence. Nothing about the language used by the Supreme Court in that case suggests the ancient documents rule in this state relates only to authenticity.