Curry v. Raymond , 28 Pa. 144 ( 1857 )

The opinion of the court was delivered by

Knox, J.

In the absence of evidence tending to prove that Curry was the tenant of Hannah Raymond, he could not protect his possession by showing either a legal or an equitable title in her. Nor could she, although admitted to defend as landlady, interpose her title to protect the possession of Curry, unless she first proved that he held the possession as her tenant. There was an entire failure to prove the tenancy, and consequently the purchase of the property by Wetherell at sheriff’s sale gave him the clear right to recover the possession held by Curry.

' The admission of Hannah Raymond to defend as landlady, was not of itself evidence that Curry was her tenant. As she was admitted upon her own affidavit that he was her tenant, but in order to make her title or right to the possession available, it was a necessary part of her case to prove upon the trial that Curry was her tenant. As the instruction to the jury to find for the plaintiff was right, for the reason above indicated, we would not reverse the judgment of the District Court even if we differed from the learned judge who presided upon the trial, upon the question of the right of Wetherell to purchase the estate in controversy at the sheriff’s sale, so as to hold it discharged from his stipulation to convey to Josiah Raymond, upon the payment of the sum therein mentioned. The case does not require us to determine this point, and it is only necessary to say that no construetion unfavourably to the view taken in the District Court can properly be given to bur silence.

• There was no error in admitting the certified copy of the mortgage, nor in rejecting the value of the lot in controversy, and the two lots on Elm street. The exemplification of a recorded mortgage may be given without producing the original or proving its loss. The certified copy of an instrument duly recorded is not evidence of a secondary character, but stands upon an equality with the original paper.

Judgment affirmed.