Harper v. . Hancock , 28 N.C. 124 ( 1845 )

Ejectment, in which the plaintiff declared on the demises of John O'Rorke and Elizabeth, his wife, John Louis Guthrie and Joseph Harper. On the trial the plaintiff gave in evidence a grant made in 1788 to one William Finley and a certified copy of a deed made in the same year to one Samuel Guthrie, and proved that Samuel Guthrie died about forty years ago, leaving three children — William Guthrie, John W. Guthrie, and Elizabeth Guthrie, his heirs at law; that the said William Guthrie died many years ago, leaving two infant daughters, who shortly afterwards died unmarried and without issue; that afterwards, in 1821, the said John W. died, leaving the said John Julius Guthrie, then an infant of tender years, his only child and heir at law, and that more than twenty years ago the said Elizabeth intermarried with the said John (125) O'Rorke. The plaintiff then gave in evidence a power of attorney by which the said John O'Rorke and Elizabeth, his wife, and the said John Julius Guthrie appointed Robert W. Haywood their attorney to sue for and take possession of all lands belonging to them in Chatham County, and to sell and convey to Joseph Harper, one of the lessors of the plaintiff, the premises mentioned in the declaration, which he did, by deed dated 22 March, 1843. This last deed contained only a covenant of special warranty against the grantors and their heirs and those claiming or to claim under them.

The defendant objected to the admissibility of the copy of the deed from Finley to Samuel Guthrie. Upon this objection being made, the said Joseph Harper swore that the original was not in his possession or power, and that it never had been; that when he purchased the land of Haywood, the attorney of the other lessors, he received from him the copy now produced, and which he then supposed to be the original deed; that he did not discover it was only a copy until the last term of the court; that he then requested Haywood to search for the deed; that he himself, had endeavored to find it by inquiring of a person with whom Samuel Guthrie was well acquainted and used to transact business respecting his lands, but could not discover it. Mr. Haywood being also sworn, deposed that when he received the power of attorney he received also from the parties, as he supposed and as they alleged, all the papers relating to their lands, and, amongst others, the said copy, which at the time was supposed to be an original deed; that the contrary was not discovered till the last term of the court; that since then he had applied to Mr. O'Rorke and his wife, and with them had searched their papers for the deed, but it could not be found, and he had no doubt the deed was either lost or destroyed; that John Julius Guthrie had entered early in life into the naval service, and was still an officer in the navy, and absent from the State; that he had written to the said Guthrie, and had procured a friend to apply personally to him, for information on (126) the subject, and had received for answer that he had no such deed, and knew nothing of it; that the said Guthrie was on his way to this State since the last term of the court, when he was met at Norfolk by orders from the Department which compelled him to go to sea; but that he, Haywood, had not made any personal application to the said Guthrie. The plaintiff also called Mr. Gunter, the register of the county, who produced the register's book, containing the registration corresponding exactly with the copy. By the book and the copy it appeared that the deed was proved before Judge Williams on 21 June, 1788. Mr. Gunter also deposed that he had made diligent search for the deed in his office, and it was not to be found. The copy was, on its face, a very old paper, and was certified by John Thompson, who was the register many years ago.

The defendant's counsel still insisted that the plaintiff had not sufficiently accounted for the nonproduction of the original, and moved for a nonsuit. His Honor reserved the question, and a verdict having been rendered for the plaintiff, the court, upon the matter reserved, set aside the verdict and directed a nonsuit to be entered. From this judgment the plaintiff appealed. It is a well established exception to the general rule which requires the production of the original as the best evidence that the loss or destruction of an original deed of conveyance may be proved to the court by the party to the suit, as a ground for letting in to the jury the secondary evidence of a copy or other inferior evidence. The cases cited by the plaintiff's counsel show that the exception was early allowed in this State. Blanton v. Miller, 2 N.C. 4; Park (127) v. Cochran, ibid., 410; Nicholson v. Hilliard, 6 N.C. 270. In the later case of Smith v. Wilson, 18 N.C. 40, the principle of those cases was explained and fully recognized, and, moreover, a decision by the Supreme Court of the United States cited, by which it appears probable that the same exception is held to be law throughout this country.Taylor v. Riggs, 1 Peters, 591. The registry laws which prevail universally, we believe, in the United States, tend very much to diminish the danger of imposition under these decisions.

But the courts have never lost sight of the sound general rule, nor intended to relax it beyond the plain necessity of the case, or where it did not appear clear that the higher evidence was not accessible to the party. Hence, the same old cases require that the destruction or loss of the supposed deed should be proved by the oath of the person in whose custody it is presumed it is, and that the party to the suit should swear that he has it not in his power, and does not know where it is. Nothing less can raise a reasonable belief in the mind of the judge that the instrument is not in the party's power; that is to say, either in his possession or that of some person from whom its production could be coerced. One person cannot swear for another that he has not the deed. There are here three several demises, and the verdict is taken generally for the plaintiff; and only one of the lessors of the plaintiff, Harper, made an affidavit, and he states merely that he never had the original deed, and does not know where it is. To the same effect is the statement of the attorney in fact of the other lessors. He can only say that he was informed by his principals that they did not know where it was, and that he believed from that information that the deed was lost. But although the witness may so believe upon such information, the Court cannot judicially declare it upon the strength of such declarations, inasmuch as they were not made on oath. The cases require that those persons should swear for (128) themselves. But it would make no difference even if Harper's were the only demise. It is true, inasmuch as the conveyance to him is with special warranty, that he is entitled to the original, and, therefore, presumed, in the first instance, to have it. His oath, consequently, is, prima facie, sufficient to prove the loss, as it is indispensable for that purpose. But when he swears that in fact he did not receive it from the persons from whom he purchased, who had the right to the custody of it before him, the presumption then remains that those persons have it, until rebutted by their oaths. Therefore, the Court agrees with his Honor, that the absence of the deed from Finley to Guthrie was not sufficiently accounted for, and the judgment must be

PER CURIAM. Affirmed. Cited: Wylie v. Smitherman, 30 N.C. 239; Harven v. Hunter, ibid., 466;Justice v. Luther, 94 N.C. 798; Gillis v. R. R., 108 N.C. 448; Avery v.Stewart, 134 N.C. 291.