
    *Ben and Others v. Peete.
    June, 1824.
    Evidence —Copy of Deed — When Admissible. — The copy of a deed may be read in evidence, upon the oath of a party, that he had searched the Clerk’s office and all other places where he supposed the original deed might probably be found, and had not been able to lind the original.
    Same — Certified Copy of Deed — Evidence against Whom. — A certified copy of a deed recorded upon the acknowledgment of the grantor, not required by law to be recorded, is evidence against the grantor, and all claiming under him, subsequently to the acknowledgment. But it is not evidence against any person, deriving title from the grantor, before the acknowledgment.
    This was an appeal from the Superior Court of Daw for Mecklenburg county.
    Ben and twenty-three others, persons of colour held in slavery, brought a suit against Edwin H. Peete, to recover their freedom. The usual issue was joined, and the jury found a verdict for the defendant. At the trial, two bills of exceptions were filed. 1. The plaintiffs excepted, because, after they had introduced a deed of emancipation to the female ancestor of the plaintiffs, from Howell Pennington, her former ■master, dated the 25th of June, 1795, the. defendant offered in evidence an office copy of a deed from the said Pennington to Martha Pennington, conveying the same negro girl, (the ancestor of the plaintiffs) for valuable consideration, dated the 20th of November, 1774. To this deed is annexed a certificate from the Clerk of Meck-lenburg county, that on the 18th day of May, 1812, the bill of sale (as it is termed) and the receipt thereon endorsed, to Martha Pennington, was acknowledged by Howell Pennington, and ordered to be recorded. To the introduction of this copy ■the plaintiffs objected, on two grounds: 1st. That it was not competent for the defendant, as the administrator of Howell Pennington, to shew, that at the time the deed of emancipation aforesaid was executed, the title to the said slave Betty was not in the said Howell Pennington;. and, 2dly. Because the said copy could not be read, unless the defendant could prove that the original was lost: that the defendant swore in 'open Court, that he had examined the Clerk’s office of Mecklenburg, and all other places where he supposed it probable that the said original deed could be found, but he had not been able to find it: that the defendant proved by the Clerk of Mecklenburg County Court, that he had examined his office for the said original deed, and had not been able to find it. But the Court permitted the said copy to be read as evidence to the jury, and the plaintiffs excepted.
    The second bill of exceptions stated, that the defendant offered in evidence the same bill of sale; and the plaintiffs moved the Court to instruct the jury, that unless the defendants, under the act of 1758, proved the recording of the said paper within eight months, no title passed thereby. [N. B. The bill of sale is dated the 20th of November, 1774, and it was ordered to be recorded on the 18th of May 1812.1 But the Court refused to give the instruction, and the plaintiffs excepted, and appealed to this Court.
    Gilmer, for the appellants.
    Deigh, for the appellee.
    June 12.
    
      
      See monographic note on "Evidence” appended to Lee v. Tapscott, 2 Wash. 276; monographic note on “Deeds” appended to Scott v. Com., 13 Gratt. 564.
      The principal case is cited in Thomas v. Bibble, 2 Va. Dec. 338.
    
   J UDGE CARR,

delivered his opinion.

The sole question put in issue by the pleadings, is the freedom of the plaintiffs. If they can establish, by legal evidence, their title to freedom, they must succeed. If they be slaves (no matter to whom,) they must fail. To prove their right, they rely on a deed of emancipation, executed by Pennington, their former master, dated the 25th of June, 1796. To defeat this evidence, the defendant produces an office copy of a deed executed by the same Pennington, and dated the 20th of November, 1774, purporting to sell to Martha Pennington, on certain terms and conditions, the slave Betty, &c. from whom it was agreed that the plaintiffs are descendants. To the admissibility of this copy, the plaintiffs objected on two grounds, only *one of which is worthy of consideration; that is, because the copy could not be read, unless the loss of the original was established. To remove this objection, the defendant made oath that he had searched the Clerk’s office, and all other places where he supposed the original deed might probably be found, and had not been able to find it. The Court over-ruled the objection, and permitted the copy to go to the jury. Was this correct? The general rule is, that the best evidence must be given, of which the nature of the thing is capable. The deed here is the best evidence. But, it is said to be lost. If so, the law is not so unreasonable as to require its production, but is satisfied with the next best evidence, a copy. To lay a ground, however, for the introduction of this secondary evidence, it must be shewn with reasonable certainty, that the original is lost. Were the Court correct in receiving the defendant in this case, to furnish by his own oath, evidence of the loss of the original; and if so, was the evidence sufficient to let in the copy?

As to the first, I was strongly inclined to think, when I commenced the examination of this subject, that the defendant ought not to have been suffered to give evidence. It seemed to me to innovate seriously upon that fundamental rule, that no body shall testify in his own cause; and the innovation, I feared, would endanger the purity of evidence. Further examination has shewn me, that the practice is against my first impressions; and though I do not cite the following cases as binding authority, I am disposed to yield to their weight. I had not adverted to the well settled distinction between evidence offered to the Court, upon a collateral point, not for the consideration of the jury, and evidence in chief. In the latter case, no interested witness can be heard. In the former, the parties themselves are often examined by the Court. Forbes v. Wate, 1 Black. Rep. 533. The issue was non est factum in a suit on a bond. It became necessary to prove, that the subscribing witnesses were dead; and the plaintiff himself *was examined as a witness to that point, and as preparatory to the proof of the hand-writing. In Jordan v. Cooper, Sergeant and Rawle’s Rep. 504, the question was, whether the Court below had done right in admitting a party to prove by his own oath, notice to the other party to produce a certain deed. Chief Justice Tilghman, considered' it the settled practice, in collateral matters of this kind, to admit the evidence of the party. He cites several cases from Yates, to the same point. See also Douglas’s lessee v. Saunderson, 3 Dall. 116, citing 1 Black. Rep. 532; Godb. 193, 326. In Butler v. Warren, 11 Johns. Rep. 57; the Court considered the admission of an interested witness, to prove service of a notice on the defendant to' produce a paper on the trial, preparatory to giving evidence of the contents of the paper, as an infraction of the rule of law, which precludes the admission of án interested witness to give evidence on the trial. But in Jackson, &c. v. Frier, 16 Johnson’s Rep. 193, the subject is again considered. Chief Justice Spencer, delivers the opinion of the Court, and in a clear and. sensible manner, states the reasoning on the subject, cites all the authorities, over-rules the decision in Butler v. Warren; and decides that a party may be examined by the Court, to lay a ground for the introduction to the jury of secondary evidence. The evidence of the loss of • a deed (he says) is addressed to the Court alone, and it is not a subject on which the jury are to pass. See also Givens, &c. v. Manns, 6 Munf. 201, where the Court say that a party, by affidavit, may prove the loss of a bill of sale. I conclude that the Court, in admitting the defendant to give evidence as to this collateral matter, did not err.

Was the evidence of loss sufficient to let in the copy? The defendant swore, that he had searched the office, and every other place where the deed would probably be, and had not been able to find it. He also proved by the Clerk of the Court, where it had been recorded, that he had examined his office and could not find it. I think this was *sufficient to let in the secondary evidence; for, the “law exacts nothing unreasonable in such a case. If the parol proof'of loss .establishes the fact with reasonable certainty, it is sufficient.” 8 East, 289; 10 Johns. Rep. 374; 16 Johns. Rep. 193.

We must next enquire, whether the secondary evidence offered in this case, was sufficient? It is an office-copy, without other proof of the execution of the original deed, than its being recorded upon the acknowledgment of the grantor. If this were a deed, required by law to be recorded, there would be no difficulty in the question; copies of such deeds being every day admitted, without other evidence, than their having been recorded. But, from the best examination I have been able to give the subject, I cannot find any act of Assembly, directing that a bill of sale of slaves, whether taking effect in proesenti or in futuro, shall'be recorded. The act of 1758 does not touch the subject, as it relates to- deeds of gift of slaves; and this is a deed of bargain and sale. The statute of frauds and perjuries does not apply,, because it speaks of de.eds on consideration not deemed valuable in law; this is a deed for valuable consideration. The act for regulating conveyances, in the 4th section, speaks of settlements; and this may be called a Settlement; but, certainly it is not a marriage settlement, of which alone that section speaks. The question is, therefore, free from the influence of our recording laws. In Lee v. Tapscott, 2 Wash. 281, áhd Rowletts v. Daniel, 4 Munf. 473, it is said, that the copy of an ancient deed, where possession ^has followed the deed, and, (in the , latter case,) where the deed wás recorded on the acknowledgement of the grantor, shall be received,, without any proof, that the original is lost of destroyed.. I do not consider these cases, as in jioint; for, though ours is an ancient deed, it wants that corroboration arising from possession. In Stip v. Turner 1 Wash. 333, a dfeed had been admitted to record, on the certificate of two persons, styling themselves Justices of the Peace *fbr South Carolina; but, the Governor’s testimonial was wanting. On a trial in ejectment, the plaintiff relied on this deed, and produced a witness to prove the execution bf it. The Court, below rejected the witness and the deed. This Court said, the deed was neither legally proved, nor legally recorded; and, as a recorded deed, would have been properly rejected; but, that such deeds were valid between the parties; that the actual execution of the deed, was a fact which the plaintiff was at liberty to prove, as in other cases, by evidence satisfactory to« the jury.

Applying this law, it would seem, thát if the party be at liberty to prove the actual execution of the deed, as he does other facts, the acknowledgement of the grantor ín a Court of record, might be considered pretty strong evidence of such execution. The case of Maxwell vl Light, 1 Call, 117, may also be considered as having some bearing on the present; the Court deciding there, that if the deed of lease was admitted to record at the instance of the appellant, a copy might, under the circumstances, be received as evidence. The English books give us much more light upon this subject. Gilbert, in his Law of Evidence, 86, says, that where a deed needs enrolment (as deeds of bargain and sale by 87th H. 8, ch. 16,) there the enrolment is the sign of the lawful execution of such deed, and a copy shall be a sufficient attestation; but, where a deed needs no enrolment, the inspeximus of such enrolment is not evidence. Buller, in his Nisi Prius, commenting on this passage, doubts -whether deeds of bargain and sale enrolled, ought to be given in evidence without being proved; though, he admits that such was the practice at Nisi Prius. Pie adds “the case of Smartle v. Williams, is much relied on in support of this practice; but, that case is wrong reported; for, it appears from the report in 3 Lev. 347, that the acknowledgement was by the bargainor, and so is stated in Salkeld’s manuscript. Besides, it appears from both the books, that it was only a term that passed, and, consequently, it *was not an enrolment within the statute.” After some further remarks to shew that the bare enrolment ought not, in all cases, t.o make the deed evidence, Justice Buller adds, “on the other hand it seems as absurd to say, that a release which has been enrolled, upon the acknowledgement of the re-leasor, shall not be admitted in evidence against him, without being proved to be executed, because such release does not need enrolment; and, in fact, such deeds have often been admitted, and that was the case of Smartle v. Williams. The deed there, did not need enrolment, yet being enrolled, on the acknowledgement of the bargainor, it was read against him without being proved.” In 1 Salk. 880, is the case of Smartle v. Williams, referred to by Buller. “A deed of bargain and sale, acknowledged by the bargainor and enrolled, (by which a term for years was assigned) was given in evidence, without any proof of the bargainor’s sealing and delivery thereof; and, after debate, it was allowed by C. J. Plolt, Eyre and tot. cur.; for, the acknowledgement of a party in a Court of record, or before a master extraordinary in the country (as this case was) is good evidence of its being sealed and delivered; and, such an acknowledgement ■estops a man from pleading non est fac-tum.” In Lady Halcroft v. Smith, Freem. 259, a distinction was made between deeds of bargain and sale (enrolled under stat. H. 8,) and other deeds enrolled; and, it was held that a copy of a deed enrolled -for safe custody, would not be evidence, otherwise than against the party who sealed it, and all claiming under him. Phillips, 410, after citing the cases, concludes thus: “The rule concerning copies of enrolments appears then to be, that a copy of the enrolment of a bargain and sale of freehold in lands, &c. is as good evidence as the original itself; but, that a copy of the enrolment is not evidence of a bargain and sale of a chattel interest, or of the contents of any other deed enrolled ■for safe custody, except as against the party acknowledging the deed; and, that against such party, and against all claiming under him, *a copy of the enrolment of any deed is admissible in evidence.” From these authorities, I think it may be safely concluded, as a general proposition, that the office copy of a deed recorded on the acknowledgment of the bargainor, (though there be no law requiring such record) is admissible evidence against the bargainor, and those claiming under him. This, I say, may be admitted as a general proposition; but, it still remains to enquire, whether the particular circumstances of the case before us, do not take it out of the rule.

The deed of bargain and sale was executed in 1774. In whose possession it remained afterwards, we are not informed; nor does the record give us any information, whether the defendant who_ produced it is in any way connected with it, or claims under it at all; or whether any other persons set up claims under it. It is produced merely to shew, that at the time the deed of emancipation was executed, the grantor had no title. That deed, (under which the plaintiffs claim their freedom) was executed in June, 1796, and duly recorded in the August following. The deed of 1774, is recorded, on the acknowledgment of the grantor, in 1812, thirty-eight years after its execution, and sixteen years after the execution of the deed of emancipation. And the question is, must this acknowledgment be taken as proof of the execution of the deed, against the plaintiffs? I strongly incline to think not. It is clear, that after the execution of the deed of emancipation, the grantor could not, by any act or deed of his, revoke that deed, or divest the title to freedom, which it had vested in the plaintiffs; and yet, nothing will be easier than to effect this indirectly, if his subsequent acknowledgements are admissible against the plaintiffs. Suppose the grantor, after emancipating his slaves, to change his mind, and repent of the act. He has only to execute to a purchaser a bill of sale for them, take no witnesses to the transaction, give the bill of sale a date prior to the deed of emancipation, and have it recorded on his acknowledgment. In the case ^before us, there is not a title of evidence of the existence of execution of the deed, but the acknowledgment of the grantor, made 16 years after the execution of the deed of emancipation; and, although the rule of law be, that that acknowledgment is to be taken as evidence against him, and those claiming under him, I believe we must limit the meaning to those claiming under him, by title derived subsequently to the acknowledgment. This may be illustrated by analogy. It is laid down in the books, that the recital of a deed in another deed is evidence against the party who executed the reciting deed, or against any person claiming under him. 1 Phill. Evid. 411; yet, when this rule comes to be applied, it is restricted to those claiming under the grantor, by title subsequent to the deed. In Penrose v. Griffith, 4 Binney, 230, this point came directly before the Supreme Court of Pennsylvania. C. J. Tilghman said: “The rule of law is, that a deed containing a recital of another deed, is evidence of the recited deed, against the grantor, and all persons claiming by title derived from him subsequently. What is the reason of this rule? It is this: the recital amounts to a confession of the party; and that confession is evidence against himself, and those-who stand in his place. But, such confession can be no evidence against a stranger; it can be no evidence against one, who claims by title derived from the person making the confession, before the confession made; because he does not stand in the place of the person making the confession; he claims paramount the confession. One who has conveyed his right, can, by no subsequent confession, affect the right which he has conveyed.” The rule thus laid down, is admitted by the rest of the Court. In the same book, Garwood v. Dennis, p. 327, the rule is again stated with the same restriction. In 2 Bay’s Rep. 93, it is decided, that the obligee of a bond is an incompetent witness to prove payment, so as to destroy the right of the assignee to recover. In Frear v. Evertson, 20 Johns. Rep. 142, the question was, whether *the admissions of a party after he had assigned his interest to another, could be given in evidence. The Court say, “that, having assigned his interest in the chose in action, he could not impair that interest by any confessions made by him, to the prejudice of his assignee.” The same principle may be found in several of our own Reports. In Vaughan’s adm’r. v. Winkle’s ex’r., 4 Munf. 136, in trespass for goods taken away, proof by witnesses that the person of whom the plaintiff bought the goods, was "heard to say, before the institution of the suit, that when he sold them they belonged to the defendant, was decided to be inadmissible. In Givens, &c. v. Mann, 6 Munf. 191, a suit for freedom, the plaintiffs claimed under a deed of emancipation from Thomas Reynolds; the defendants were purchasers of the paupers, as slaves, from John Reynolds, the son of Thomas. The Court decided, that the admissions of Thomas, with respect to John’s title and possession, so far as they were made prior to the deed of emancipation, might be received; but that no subsequent acknowledgments were admissible. These authorities well warrant the conclusion, I think, that in the case before us, the acknowledgment of Pennington, of the execution of the deed, is no evidence of- that fact, as against the plaintiffs; and, consequently, that the copy of the deed, resting solely on that acknowledgment, ought not to have been admitted by the Court below.

I am of opinion, therefore, that the judgment be reversed, and the cause sent back, with directions to the Court, not to receive the copy, unless the execution of the deed be proved by sufficient evidence, exclusive of the acknowledgment of the grantor.

The other Judges concurred; and the judgment was reversed, and the cause remanded. 
      
      Judge Green, absent.
     