Harven v. . Hunter

The plaintiffs claim title to the lands in dispute (465) through Thomas Kendrick. They alleged that John Kendrick, the father of Thomas, devised to him and Green Kendrick, his brother, the land in dispute. To show title in John Kendrick the lessors of the plaintiff offered in evidence copies from the register's office of various deeds covering the land, and a similar copy of a deed from Green Kendrick to Thomas Kendrick of his moiety of the devised premises. Mrs. Harven, one of the lessors of the plaintiff, was the only child and heir at law of Thomas Kendrick, who died in 1829 intestate. At the time of this death his daughter, Mrs. Harven, was an infant, and was but seventeen years of age when she married the other lessor of the plaintiff. To entitle themselves to read the copies in evidence the plaintiffs produced one Smith, who was the son-in-law and executor of John Kendrick, who proved that a few days before his death his testator delivered to him the original deeds, with the request that he would hand them to Thomas Kendrick, which he did, in whose possession they remained to the time of his death. Since then he knew nothing of them. The affidavit of W. Harven, one of the lessors of the plaintiff, was then read. It stated "that he did not know what had become of the original deeds to John Kendrick or of that from Green Kendrick to Thomas; that he had made due inquiry for them and was unable to procure them. The admission of the copies was objected to by the defendants, but allowed by the court. Objections to other evidence in the case were made below, but were abandoned here, and the only question submitted to this Court is as to the reception of the registered copies of the deeds. This cause was tried at the Special Term of Mecklenburg, held in the fall of 1846. The case, then, does (466) not come under the operation of the act of the General Assembly passed at their session begun in that year (chapter 68, section 1), and the question is to be decided by the law as it existed before the passage of that act. The admissibility of such secondary evidence, upon a proper case, is not denied, but it is denied that the plaintiff has entitled himself to it here. In the many cases which have been from time to time ruled in our courts, the sound general rule, that the best evidence which the nature of the case admits of must be produced, has never been lost sight of nor relaxed beyond the manifest necessity of the case, and this necessity must be made clear to the court. The person who claims the benefit of the exception must swear that the higher evidence is not in his power and that he does not know where it is, and its destruction or loss must be proved by the person in whose custody it is presumed by the law to be. Harper v. Hancock, 28 N.C. 124. His Honor who tried the cause admitted the copies to be read, upon the presumption that, in the absence of the proof to the contrary, the title deed passed to Mrs. Harven, the heir at law, and the husband was competent to make an affidavit to account for the nonproduction of the originals. Without deciding this question, the objection is as to the sufficiency of the affidavit itself, under the circumstances. The case does not profess to set forth the affidavit itself, but its contents. It states, not that he did not have the deeds in his possession, but simply that the affiant did not know where they were, and that he had made due inquiry for them and was unable to procure them. It may be that his possession is substantially and sufficiently denied but the affidavit ought to have set out what inquiries he had made where and of whom that the court might judge whether they were sufficient. It will be recollected, also, that the plaintiff Mrs. Harven was at the time of her father's death very young, and was but seventeen when she intermarried with William (467) Harven. If the County Court of Mecklenburg performed their duty, she had a guardian appointed, in whose custody the title deeds of her real property would probably be, and if we are to take the affidavit as true, those deeds may be in his possession still, for it does not appear that he delivered them to the plaintiff, the husband. It is true that in order to show that an original is not in being it is not necessary to prove that every place has been searched where it might possibly be, or every person examined who might, by any possibility, have it in possession; but every place which the law deems its proper depository ought to be properly examined and every person brought forward who, by law, is entitled to the possession. 2 Steph., 1521. Nothing else ought to satisfy the court, as the introduction of secondary evidence is from necessity, that the ends of justice may not be defeated. As from the case of Harper v. Hancock, supra, it must clearly appear that the higher evidence was not within the party's power to produce, we are constrained to say that the copies of the deeds were in this instance inadmissible.

PER CURIAM. Judgment reversed, and venire de novo.

Cited: Robards v. McLean, post, 525.

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