Gorgas v. Hertz

Per Curiam,

The first and second specifications allege that the court below erred in permitting the witnesses named therein to prove the contents of the deed, alleged to have been lost. It was held in Diehl v. Emig, 65 Pa. 820, that the contents of a deed, lost, destroyed or suppressed, may be established by parol evidence in ejectment, when its existence has first been proved. There was sufficient evidence of the existence of this deed to justify proof of its contents by parol. The sufficiency of the search for a lost deed is generally left to the discretion of the trial judge. When it appears that the judge, who presided at the trial of the case, was satisfied that a paper was not procured only because it could not be found after faithful search, this court will, as a general rule, accept it as an established fact. But if the proof be manifestly insufficient, the case should be reversed: Hemphill v. McClimans, 24 Pa. 867. We cannot say that the search for this deed was so manifestly insufficient as to justify us in reversing.

We do not find any error in that portion of the charge of the learned judge embraced in the third specification, nor in his answer to the defendant’s second point. The fact that the plaintiff’s own witnesses differed in their recollection of the deed, as to whether the money was payable after Mrs. Muckle’s death to her legal representatives, or to her heirs, is immaterial. The defendant can be protected against a mispayment by a proper application to the court below.

Judgment affirmed.