
    
      William Reynolds vs. Daniel Quattlebum, John Quattlebum and W. Spradly.
    
    Parol evidence of the contents of a deed cannot be given until the loss of the deed has been proved.
    Where the presiding Judge is satisfied that a deed is in court in the possession of one party, and that it is so is not denied, the adverse party may give evidence of its contents, upon giving notice to produce it during the trial.
    After a case has gone to the jury and evidence has been heard, neither party will be permitted to amend his pleadings, nor will a defendant be allowed to withdraw his plea.
    
      Before Butler, J. at Lexington, Spring Term, 1844.
    This was an action of trespass quare clausum fregit. The plaintiif, under a grant in his own name for four hundred and twenty-nine acres, dated March, 1838, and under a quit claim from Willis Hartly, had been in the actual possession and cultivation of the field which was the subject of the trespass, for four years. In the latter part of February, or first of March, 1843, the defendant, Daniel duattlebum, who set up some claim to the land, had part of the field sowed in oats. This was done while there was some small quantity of cotton in the patch not picked out. Under his orders, the fences were moved, and the land, from that time to the trial, had been cultivated by the three defendants. Two of the defendants, Spradly and John duattle-bum, by the sanction of the other defendant, destroyed a small turnip patch, under circumstances and with expressions of contempt and derision, calculated to irritate and insult the feelings of the plaintiff.
    Under the plea of liberum tenementum, the defendant, Daniel Quattlebum, contended, that having a good and perfect title, he had a right to enter upon and cultivate the land. He introduced a copy grant to William Holsten for six hundred and fifty acres, dated 5th August, 1793. The grant, by its south-eastern boundary, embraced the land in dispute. Next, a deed from Russell Gunter, Abel Gunter, and Benjamin Gunter, dated 4th March, 1843, conveying to the defendant the land described in the above grant. These three Gunters were the children of Joshua Gunter, who had been dead about ton years, without a will, and leaving about ten children as his heirs at law. The defendant contended that, under his deed from three of the heirs, he was tenant, in common with the other heirs of Joshua, of all the land embraced in the Holsten grant, and that Joshua Gunter was seized of the land at his death, by virtue of a deed from William Holsten to him. Four or five of the sons of Joshua were sworn as witnesses— they said that their father had lived on part of the land on Chinquipen Creek, opposite Mill Creek, for eighteen or twenty years ; that he went in after one Doget had left the possession, which was a small place of a few acres. They said their father left the land in the possession of one of his sons, and moved to Edisto, where he died. One of these witnesses, Rivers Gunter, said that shortly after the grant was taken out by Holsten, it was understood that his father was to have a part, Ben Hartly a part, and Holsten the remainder — his father and Hartly settled on the land. This witness was asked the question, if he had ever seen a deed from Holsten to his father ? and before an objection could be made to the question, he said he had.
    Upon the question being raised, the presiding Judge required the defendant to proceed regularly, and by competent evidence, if it was his design to prove the existence and loss of the deed referred to by the witness.
    The witness was asked what was done with the papers of his father 1 and he said that they were delivered, with all his father’s personal property, to his youngest brother, who was not present. He was further asked, if his father’s deed had not been burnt ? and he replied no, not that he ever heard of. His Honor ruled that, under these circumstances, the witness could not speak of the existence of the deed — especially as no search had been made for the paper, and no effort had been made to procure the subscribing witnesses to it — if in fact there had ever been such a deed. If the evidence of the witness had been received, it would have gone to this extent — the existence and contents — boundaries and all, would have been established — by one of the heirs at law, by his saying he had seen a deed of a certain purport and title.
    
      Not having made out his title, the defendant, by way of extenuation, proved that this tract of land had been for many years in dispute, and that there were at this time many claimants to it; and it appeared that other suits were pending in court to try the title to it. Col. Fair represented one of these parties, and had in his possession the original grant to Holsten.
    In reply, the plaintiff undertook to prove a perfect title in himself, by virtue'of a statutory possession in one Barnet Livingston, under whom he claimed through sheriff’s sale.
    With a view of giving in evidence"the deed from sheriff Harmon to Willis Hartly, from whom plaintiff bought, a notice was served on defendant during the trial, to produce that deed.
    The defendant’s counsel objected to produce the deed, upon the ground that the notice was too short to allow their client to get the deed, if he had such an one.
    His Honor said that if the defendant would then swear that he had not the deed in court, he would not allow the plaintiff to go into secondary evidence to supply its place. This the defendant declined to do, and the plaintiff proceeded as follows.
    
      Willis Hartly said that after he purchased some land at sheriff’s sale, he sold a part of it to John Senturfit. It was called the Cargil tract of land, and had been sold as the property of .Barnet Livingston.
    
      John Senturfit, being sworn, said that he sold the part of the Cargil land, below what was called the Frederick line, to Daniel Quattlebum, and that he delivered to him the sheriff’s deed, which he got from Hartly, conveying part of the Cargil tract.
    Harmon, former sheriff, said that by his sale book, which he produced in court, it appeared that he had sold, under fi. fas. against Barnet Livingston, a tract of land called the Cargil tract, to Willis Hartly. The sale took place in December, 1833, upon a bid of twenty-six dollars. The witness could not recollect who were the subscribing witnesses to the deed.
    Two fi. fas. of Jones vs. Barnet Livingston, were introduced, with a levy indorsed on them of the Cargil tract of land.
    
      
      John Livingston, a son of B. Livingston, then was sworn, and said that before the sheriff’s sale his father was in possession and cultivation of the Cargil tract, and that it embraced the field which was the subject of the controversy; that the field must have been cleared about ten years before the sale, as he had ploughed in it when he was a small hoy.
    After both parties had closed, and before the commencement of the argument, the defendant moved to strike out his plea of liberum tenementum.
    
    His Honor refused to grant the motion, because the plaintiff having framed his pleadings in reference to this plea, was entitled to all the advantages which a decision on it might afford.
    His Honor held that the plaintiff was entitled to a verdict, and left it to the jury to say what should be its amount. Verdict for plaintiff.
    The defendants appealed, and now moved for a new trial, on the following grounds.
    1. Because his Honor erred in rejecting the testimony offered by the defendants, of the existence of a deed from William Holsten to Joshua Gunter, of the land granted to the former.
    
      2. Because his Honor erred in ruling, as a point of law, and charging the jury, that the possession of Joshua Gun-ter on the grant to Holsten, could not be extended beyond the actual possession.
    3. Because his Honor erred in ruling that the plaintiff was entitled to give parol evidence of a deed and its contents from the sheriff to Willis Hartly, upon its being traced to the possession of the defendant, without any notice having been given to the defendants to produce it, until after the defendants had closed their testimony.
    4. Because his Honor erred in overruling the motion of the defendants, after the evidence had closed, to withdraw their plea of liberum tenementum.
    
    
      Boozer, for the motion.
    
      Gregg, contra.
   Curia, per Evans, J.

The plaintiff being in possession of the land, had a right to retain it against all the •world but the legal owner; and to justify the defendants in the trespass which they committed, it was necessary they should have proved the land belonged to them, or some of them, or to some one by whose authority they entered. It is very clear they made out no such title, and, therefore, the plaintiff had a right to recover, independent of the title which he derived through the sheriff’s sale, under Barnet Livingston’s possession. So that even if there had been error in admitting the parol evidence of the sheriff’s deed, there would be no ground for a new trial; but, as I shall shew hereafter, there was no error in this.

But the defendants allege, in their first ground, that legal evidence was excluded. Is this so 1 What are the facts ? The land was granted to Holsten, and they proposed to prove, by parol, that Holsten had conveyed to Gunter, under some of whose heirs the defendants set up a title in D. Quattlebum, without any proof of the loss of the deed. This is held to be necessary, even where the deed has been recorded: and in Hill vs. Hill, 2 Hill, 542, it was decided, that in the case of a lost deed, not recorded, the subscribing witness ought to be produced. But in this case there was no proof of loss ; and without such proof, no evidence of the contents of a deed is admissible. But the defendants allege that. Gunter was in possession for twenty years, and that the evidence was admissible to confirm the presumption of a deed from Holsten to Gunter, arising from the long possession of the latter. To this there are two objections; the first is, that his possession was on an entirely different part of the Holsten grant. They have shewn no color of title in Gunter, nor any thing which would extend his possession, by construction, over the whole grant. Indeed, his possession could not be so extended, because the land in dispute was in the actual occupancy of Barnet Livingston, who was not holding under Gunter, but, so far as appears, in hostility to him. 2d. That, although a party may strengthen the presumption of a grant or deed arising from an occupancy of twenty years, by proof of other facts, which go to confirm it, as is said in Howell vs. House, 2 Mill, 80, these confirmatory facts, I presume, must be proved according- to the rules of evidence; and these rules exclude parol evidence of the contents of a deed, until evidence of loss has been first given.

The 3d. ground relates to the evidence as to the sheriff’s deed. I have already said that the defendants having failed to support their plea of liberum tenementum, the plaintiff was under no necessity to go into evidence of any title to himself. But I am entirely satisfied with the correctness of the circuit decision. There is no doubt about the rule that parol evidence of the contents of a deed, in the possession of the adverse party, cannot be received, without reasonable notice to produce it. But what is reasonable notice must depend on circumstances. The reasons for requiring notice before the trial, do not apply when the deed is present in the party’s possession, and can be produced instanter. In this case, the Judge was satisfied the deed was in court, and that it was so, was not denied, either on the circuit or in this court. Under these circumstances, the notice to produce the deed was sufficient.

The only remaining question is, whether there was error in law in the refusal of the circuit court to allow the defendants, after the evidence was' closed, to withdraw their plea of liberum tenementum.

The right of a plaintiff to discontinue, or let fall his action, is fully recognized by our decisions; and for the same reason the defendant may withdraw his discount, because a discount is but a cross action; and this may be done at any time before verdict rendered. The right to alter or amend the pleadings, at any time before trial, has, in general, been allowed, with this restriction, that it shall work no prejudice to the adverse party. But after a case has gone to the jury, and evidence heard, such indulgence has never been allowed, that I know of. The effect would be to allow a party to shape his pleadings according to the evidence after he heard it. The defendant must elect on what ground he will put his defence, and will not be allowed, after the evidence is closed, to avoid the consequences of his plea by withdrawing it from the consideration of the jury. No authority was cited for such a pro» ceeding. It seems to me to be wrong in principle, and cannot be allowed. The motion is dismissed on all the grounds.

O’Neall, Butler, Wardlaw and Frost, JJ. concurred.

Richardson, J. I dissent, on the ground of the notice being insufficient.  