
    
      James Floyd vs. Briant Mintsey.
    
    To prove a sum. pro. decree against T. F. a sum. pro. against T. F. and H. H. was produced with sheriff’s return of service thereon as follows, “ copy of this process on H. F. personally servedthe docket and minutes were also produced where the case was stated as against both defendants — on the docket it was marked “decree by default,” and in the minutes “decree’’simply: no fi.fa. could be found, but in the sheriff’s execution book, the fi.fa- was entered as against H. F.alone: there was evidence that T. F. was, at the time, a resident of Worth Carolina: Held, that the proof of a decree against T. F. was insufficient, and a sheriff’s conveyance of his land, purporting to be founded on the decree, was rejected.
    Unless proof is adduced of the loss or destruction, satisfactory to the Court, secondary evidence of the contents of a deed cannot be submitted to the jury: no uniform rule can define the requisite evidence in all cases to establish the loss: this must depend on the circumstances of each case.
    Whenever the deed in question is traced to a particular individual, he should, if alive, be examined as to the loss; and, if dead, his representatives should be examined; and it makes no difference that the individual resides, or died, in Alabama.
    In trespass to try title, plaintiff claimed under the heirs of I. and defendant claimed under T. who, it was alleged, held adversely to I: Held, that the declarations of I. were admissible for the defendant to show the adverse character of TVs possession.
    
      Before Withers, J. at Horry, Fall Term, 1851.
    The report of his Honor, the presiding Judge, is as follows:
    ■ “ This action was trespass to try title. The plaintiff established title in one Isabella Floyd, and traced the same to himself, as to two out of seven distributive shares of her heirs at law, by evidence that was not questionable. Isabella derived the land in question from her husband, as widow, the same having been allotted to her on partition. The writ, in that proceeding, in reciting the real estate of Francis Floyd, deceased, specifies as follows, to wit: “ Also another plantation or tract of land, containing one hundred and twenty-five acres, the half of a survey granted to Samuel Floyd, sen. situated in the district of Georgetown, grant dated 1st August, 1785 “also, a tr.act containing five hundred acres, granted to Francis Floyd, 4-th August, 1795.” The return of the Commissioners, which Avals made the judgment of the Comí, allotted to Isabella, the widow,1 seven hundred and twenty-five acres, to wit, one hundred and ' twenty-five acres, the half of a survey granted to Samuel Floyd, (giving the boundaries), and stated to include “ the house and plantation whereon the said Isabella Floyd now livesalso another parcel of five hundred acres, situate in the district aforesaid, adjoining the aforesaid tracts, surveyed for Francis Floyd, 4th August, 1795.
    “ Isabella lived on the one hundred and twenty-five acres for some years, Theophilus Floyd (and I suppose the rest of her children) remaining with her, tvhen she married and removed to North Carolina, and there remained until her decease in 1837. The two tracts, making up the seven hundred and twenty-five acres, lay contiguous to each other, and the evidence shewed that the land was cultivated, in a common enclosure, upon both tracts, before and after the possession by Theophilus Floyd. The house occupied by those who used it, (including Theophilus Floyd), was on the 8'am. Floyd grant, and the land upon which the trespass in the case was committed was on the Francis Floyd tract. The question of adverse possession by Theophilus, involved an argument as to the extent of it by color of title; and it became a topic of debate whether his possession did not extend, by color, on the Francis Floyd grant, and how far, and whether it did not embrace the precise spot on which the trespass was alleged to have been committed. It was the question of the cases of Alston and McDowall, (1 McM. 444,) and Alston and Collins, (2 Sp. 450). I remarked, in passing, that it was probable the proceedings in partition, merely, scarcely united the parcels of one hundred and twenty-five and five hundred acres sufficiently to make them one body, for they seemed to have been kept separate in the description, and no boundary, common to both, had been designated. This will explain the fifth ground of appeal. Whether I was right or wrong in that particular, I considered, and yet consider, quite immaterial, for the question put to the jury, and the only one, was, whether Theophilus Floyd held the land adversely or not. If he did, there was little doubt his possession included the locus in quo. The verdict implied that his possession was not adverse at all, and thus it was hot important to determine to what extent his color of title may have carried that possession, if it had been adverse.
    
      “ It was essential for the defendant to prove title to the locus in quo in Theophilus Floyd, which was sufficient for him whether he traced title down to himself or not. Yet he struggled to get in a deed from the sheriff of Horry district, purporting to convey the land in dispute to him. For this purpose he offered a sum. pro. Wm. Todd, Adm’r. of S. Johnson, vs. Theo-philus Floyd and Hugh Floyd. It was founded on & joint note of the defendants for $60 25. Such a case appeared on the docket for November, 1827, and was there marked “ Decree by default.” John R. Beatty, deputy clerk, said he had searched in the Clerk’s office for an execution in this case, and could find none. The return on the process by sheriif Sessions was in these words, “ Copy of this process on Hugh Floyd personally served.” The word “ on,” it appeared to me, had been written “ and ” originally, but converted into “ on.” I am convinced that fheophi-lus Floyd was never served, and that an entry in the sheriff’s book as follows, “Adm’r. of S. Johnson vs. Hugh Floyd : Decree $60 25, interest from 1st January, 1826,” (which corresponded with the note on which the process issued), can be accounted for only on that supposition. There was, if this be correct, no fi. fa. in the sheriff’s hands against Theophilus. Indeed, other evidence led me to believe that Theophilus was resident in North Carolina when the process was issued and the judgment rendered. In the minutes of the Court for November term, 1827, the following entry appeared, “ Adm’r. of S. Johnson vs. Theophilus Floyd and Hugh Floyd — same.” The word “ same ” was under ■ that of “ decree,” at the top of the page; and this was all that was adduced to shew a judgment in the case, No statement shewing against whom the decree was made, or for how much, appeared.
    
      “ Mr. Thomas A. Beatty said he married the widow of Johnson, and became the guardian of her children ; that the administrator turned over to him the papers of that estate, among which was a debt against Theophilus and Hugh Floyd ; and he spoke of an execution against them and of having received money from the sheriff by virtue of it. I am quite satisfied, however, that the execution upon which he received money was that entered in Sessions’ book against Hugh Floyd, and that it was so entered in the sheriff’s office by the attorney, when he came to see that the process against Theophilus and Hugh had not been served on the former at all.
    
      “ It was on this evidence the defendant offered a deed of conveyance from the sheriff to him for the land in dispute, sold as the property -of Theophilus Floyd, by virtue of the judgment against him and Hugh, in favor of the administrator of Johnson, as already set forth. The defendant’s counsel thought he had given evidence of a judgment against Theophilus and Hugh, and had accounted for the loss of the execution. I thought he had not given evidence of either judgment or execution against Theophilus, and excluded the sheriff’s deed purporting to be founded thereon, except so much thereof as described the land, and so afforded a color of title. The defendant’s counsel wished to lay before the jury the recital in the sheriff’s deed, but supposing it related to a judgment and execution, the evidence of which had been sought in vain in the proper place, I would not admit the recital to be read. If the existence of a judgment had been proved, I suppose evidence of fi. fa. might have been derived from the sheriff’s deed, but I considered that no judgment had been established against Theophilus Floyd. I after-wards ascertained that the recital in the sheriff’s deed was to the following effect: “ Whereas Theophilus Floyd became indebted to the estate of Samuel Johnson, deceased ; and whereas judgment was obtained thereon by said Johnson’s estate,” &c.Then a levy was recited on a certain tract of land, (boundaries specified and they included the land in dispute), as the property of said Theophilus Floyd; that due notice was given of a sale to satisfy said judgment, and that the sheriff did sell and dispose of the said tract of land to Bryant Mmtsey.
    " I thought the introduction or exclusion of the sheriff’s deed immaterial as a link in the chain of title, because the ulterior question was, at last, whether Theophilus Floyd had a title to the land; and that (as I have before said) was the sole question submitted to the jury, and turned upon the point of adverse use and possession.
    “ The defendant then undertook to shew a conveyance by Isabella, the mother, to Theophilus, the son, and for this purpose to give parol evidence of a lost deed. For this purpose, Hugh Floyd, the brother of Theophilus, and joint maker of the note on which the summary process had been issued, already set forth, and who had pointed out to the sheriff the land in controversy as the property of Theophilus, and by the sale of it had been exonerated from the debt, was examined by commission. He said that Theophilus, his brother, had been absent about twenty-two or twenty-three years; that a deed was delivered by Isabella to Theophilus, which he supposed he carried to the west; he did not know when he last saw it; it was drawn by Samuel Floyd, and witnessed by him (Hugh) and Samuel Johnson; that Theophilus claimed and held the land, and he had never heard Isabella or Lee (her second husband) claim it after her second marriage; that he pointed out the land to the sheriff, and had never claimed it as a part of his mother’s estate; that Theophilus had died in Alabama, about seven years before he spoke; had left seven children, the youngest 20, the next youngest about 22. Numerous objections were filed by the plaintiff to the defendant’s interrogatories to this witness. The Sth, which inquiied of Hugli the contents of the deed, was objected to, and I sustained the objection, because I did not think there had been a sufficient search for the original and proof of its loss, even if its existence had been sufficiently established. I overruled the plaintiff’s objections to the 9th question, so far as to admit answers to the following : — ■i After your mother’s marriage, who claimed and held the land in dispute, until sold by the sheriff? Did she or her husband ever claim it after her marriage?” I sustained the objection to the following clause— “ Did you ever hear your mother say whose it was ?”
    “I will endeavor to collect, scattered as it is in confusion over a broad surface, the testimony as to adverse possession by Theophilus, and that, I trust, will complete the response to the grounds of appeal.
    “ Johnson Floyd. — I remember the partition. My mother lived on the land allotted to her five years — she married one Lee, moved to North Carolina, and there' died in 1837. I. and Theophilus staid on the land four or five years together; he married and I quit it. He staid there several years after 1 left. I and Theophilus worked the land and paid no rent. Theophi-lus, I think, claimed it as his own. I don’t know that Lee or my mother ever set up any claim to the land after she went to North Carolina. Hooks was in possession once, probably entered when Theophilus left. I and Theophilus lived at the homestead, where my father died. I suppose we cultivated on two tracts — suppose one hundred and twenty-five acres of open land there.
    “ James Williamson. — Theophilus lived on the land some years; went, I think, to North Carolina, and lived there until he left for the West. Hooks next occupied it, don’t know how long ; was there. I think, when Theophilus left. I think Mrs. Bluffkin lived in the old house, am uncertain; she certainly lived in the new house, and while in one or the other, she said she lived under Elliott or Mintsey. Don’t know how long she lived there.
    “ Patrick Hooks. — I lived in the old house with Theophilus, who went to North Carolina; when he left the place, can’t say how long ago. I remained there as his tenant, for about three years after he went away. After that, I staid there as Mintsey’s tenant two or three years. While Theophilus was there, he used it as his own, and I knew nothing to the contrary. Mrs. Bluffkin followed me immediately as defendant’s tenant. She was there a good smart time, some years. Richard Moore followed Mrs. Bluffkin very soon after she left. I think he entered as Elliott’s tenant. After that, both plaintiff and defendant claimed the land — the widow Hodge was claimed as tenant of plaintiff, and Moore as defendant’s. When they left, defendant took possession, and, so far as I know, has kept it. The fence of Theophilus Floyd took in the place where the new house is, (which was part of the locus in quo,) and remained there until it rotted down; part of it rotted down before he went away.— Mrs. Bluffkin built in the corner of the old field. Theophilus cultivated where the new house is situated. The land around the new house was grown up in pine saplings. I was there while Theophilus was, five or six years — he had been there before, eight or ten years, and was there constantly cultivating the land around the position of the new house. He might have left out the land one year, and planted the next. About three years after Theophilus left, I became Mintsey’s tenant. After he went away, for three years, I was no one’s tenant. I lived there for three years after Theophilus left, and paid him rent. [Such was the language of„this witness, however irreconcilable. ]
    “ iSam’l. Elliott. — Mrs. Bluff kin was on the land for me about eight years, don’t know how long for defendant, nor how long she had been there before she became my tenant. Moore lived there as my tenant about three years. He followed Mrs. Bluff kin immediately. After he left, defendant went into possession im-‘ mediately, and has been there since. 1 have known the land, perhaps, for forty years. Theophilus Floyd left it, perhaps, twenty odd years ago — lived there after his mother married, can’t say how long. He lived there while the men were on Cat Island, during the last war. The fence is now more than as far again as when Theophilus was there. Mrs. Bluff kin lived in the old.house, and cultivated all under fence, and extended the clearing, some' in the old field towards the new house*. She cultivated fifteen or twenty acres. There had been a large clearing before — an old field was outside the fence. What she cultivated was around the old house, with three or four acres in another spot on the same tract, the Sam. Floyd grant. (This witness was the son-in-law of defendant).
    “ [ Defendant offered a conveyance, the description in which embraced the land in dispute, from the defendant, Mintsey, to Samuel Elliott, dated August 7, 1835 — and also a re-conveyance of the same from Elliott to Mintsey, dated April 17, 1847. ]
    
      “ I thought I took somewhat unusual pains to explain to the jury the proper conception of adverse possession, and how far it might be carried by color of title. I read to them every word upon my notes on the subject, and I question much if the plaintiff thought my observations on the possession by Theophilus Floyd were favorable to him; though I did not instruct the jury, peremptorily, that it was adverse. I knew too little of the witnesses, and they spoke too vaguely about dates and time, to warrant that, as I conceived. It will be observed that the whole question turned upon the possession of Theophilus. He lived on the Sam. Floyd grant, and the trespass in this case was on the Francis Floyd grant. So another question arose touching the extent of his possession, if adverse to his mother’s title at all — that is to say, whether it embraced the locus in quo• Unless a title thereto had been acquired by Theophilus Floyd, it remained in his mother, Isabel, until her death in 1837, Thenceforth there was a minority that prevented the acquisition of title.
    “ The jury found for the plaintiff 2-7ths of the land, and five dollars damages.”
    The defendant appealed, and now moved for a new trial, on the following grounds.
    1. Because his honor refused to admitAatlesti^ny of Hugh Floyd, one of the witnesses to tha^ed^p^ovefi'-to>,i^e executed ^contents, by Isabel Floyd to Theophilus Floyd, to prove 'it'q % when it was in proof, that the dlhey.persoÜs^andhhÁ /IMrt-TT?* +!'■* /\ rl AArl ttrAWA /*! An rl a Vk A' +L n td11 I tU nXvsIS'rl n Cl Uil person who drew the deed were dead. anff.-that^Thedphj^usj^loyd, to whom it was delivered, had left the^.State;fpr the.$Vest, twenty years ago, and was dead. ■A.,-?
    2. Because his Honor erred in ruling, as incompetent, the declarations of Isabel Floyd, as to whom the land belonged, when it had been proven that Theophilus Floyd had been living on it for more than five years, before 1824, claiming and using it as his own.
    3. Because his Honor refused to admit the deed from J. T. Sessions, sheriff of Horry district, to the defendant, dated April, 1828, to be read in evidence as proof of title in defendant, on the ground that there was neither evidence of a judgment or execution against Theophilus Floyd. Whereas, it is insisted that there was sufficient proof of both, and that upon proof of search in the Cleric’s office, where it could not be found, and of its existence by T. A. Beatty, the sheriff’s deed ought to have been received as proof of it, and that he acted under it as he professed by the deed to have done, especially when it was clearly established that the defendant, by his tenants and those claiming under him, had been in possession of the land ever since.
    4. Because his Honor refused to allow any portion of the deed from sheriff Sessions to be read in evidence, (although the same had been proven by one of the subscribing witnesses,) except the description of the lands therein contained, excluding the consideration and all other parts of the deed, whereas it is insisted that, upon proof of the deed, and its admission in evidence, even as giving color of title, the defendant was entitled to have the whole read.
    5. Because his Honor erred in his charge in saying to the jury that it was his “ impression” that the return and proceedings in partition did not so consolidate the different tracts of land allotted to the widow, Isabel Floyd, as to enable one holding the same to claim title by possession to both, notwithstanding he cultivated on both tracts under one fence, and claimed to the extent of the boundaries designated in the return in partition, when it is insisted that he should have charged the reverse to be the law.
    6. Because his Honor erred in not charging the jury under the proof, that where one used and claimed the land as his own, his possession was presumed to be adverse, especially as it was proven that neither Mrs. Isabel Floyd, who had been, before her marriage, the rightful owner, (and under whom plaintiff claimed,) or her husband laid any claim to the land.
    7. Because the undisputed possession of Theophilus Floyd, under his claim of title for fourteen years, vested in him a complete and full title to the whole lands claimed by defendant, and his Honor should have so charged.
    8. Because it was clearly proven that Theophilus Floyd was in the actual possession of the fields and house, occupied by the defendant, and the jury, under any circumstances, were bound to find to that extent.
    9. Because the possession by Theophilus Floyd, and those claiming under him from 1812 to 1837, without any adverse claim in the mean time, was such as to presume a grant from the State, or a deed from Isabel Floyd, and the jury should have been so instructed.
    
      Harllee, for the motion,
    cited on the 1st ground, 6 Peters, 352 ; 1 Green. Ev. § 83, note 2 ; 1 Brocken. R. 520 ; 9 Wheat. 521; 4 M. & S. 48; 3 McC. 319; 3 McLean, 56 ; 2 Hill, 525 ; 2 Mill, 80. On the 2d ground, 1 Bail. 62; 2 Hill, 488 ; 2 Stark. R. 230; 1 Green. Ev. § 97. On 3d ground, 2 Brev. 183; 2 Hill, 438 ; 2 Bay, 441. On 5th ground, 1 N. & McC. 357; 3 McC. 261. On 6th ground, 1 Tread. 125; and on 7th ground, 2 McC. 289.
    
      Munro, contra,
    cited 5 Dana, 298; 1 Porter, 229.
   The opinion of the Court was delivered by

Fkost, J.

The plaintiff established his title to two-sevenths of the land in dispute, by the purchase of their distributive shares from two of the heirs of Isabella Floyd. The defendant claimed under Theophilus Floyd, the son of Isabella. The title of Theophilus was maintained by evidence of possession, adverse to his mother, acquired and held sometime between the years 1812 and 1828: and, also, by parol evidence of a deed of conveyance from Isabella to Theophilus Floyd. The defendant derived title to himself from Theophilus, by purchase of the land at sheriff’s sale, under a decree in summary process against Theophilus, in 1828. Isabella Floyd died in 1837 : and since that time the title of the plaintiff has been protected by minorities against any claim by adverse possession. In 1835, the defendant conveyed the land to Samuel Elliott, who re-conveyed it to the defendant in 1847.

The defendant having held possession of the land only seven years under the sheriff’s deed, when he conveyed to Elliott, acquired no title by possession, under color of that deed: and Elliott acquired no title by his possession, before he re-conveyed to the defendant, in consequence of the death of Isabella and the minorities of some of her distributees.

The defence to the action, then, rested on proof of the alleged deed of conveyance from Isabella to Theophilus Floyd: and on proof of adverse possession by Theophilus. for ten years before his mother’s death. Proof of such adverse possession would have been sufficient to defeat the plaintiff’s recovery, even though the defendant had not proved title in himself derived from Theophilus.

But the defendant offered in evidence the sheriff’s deed : which was not admitted. The rejection of the deed is the subject of the third ground of appeal. The exclusion of it might be supported, on the ground that it was immaterial to either of the issues on which the case was to be decided. Under the deed, the defendant could acquire no title unless Theophilus had title: and if title was shewn in Theophilus, that was a sufficient defence. If Theophilus had not title, the sheriff’s deed to the defendant could only serve to define the extent of his possession. But he held possession under the deed only seven years: and having (by the verdict) established no title by adverse possession at all, evidence of the extent of his claim was wholly useless. But the deed was properly rejected, because there was no evidence of any decree against Theophilus Floyd to authorize the sale of the land by the sheriff. The entry on the docket, “ decree by default,” was no judgment. (Evans vs. Hinds, 1 McM. 490.) A decree must be entered in the minutes of the Court. (McCall vs. Boatwright, 2 Hill, 438 ; Gage vs. Santon, 2 Mill, 248.) The ent^r in the minutes of “ decree ” at the top of the column, did not shew whether it was rendered for the plaintiff or for the defendant: nor, if for the plaintiff, whether it was rendered against both the defendants. The evidence is very strong to shew that the decree could not have been rendered against Theophilus.

The defendant also excepts to the exclusion of the testimony of Hugh Floyd, to prove the contents of a deed of conveyance from Isabella to Theophilus Floyd, alleged to be lost.

It is quite clear that unless proof is adduced of the loss or destruction, satisfactory to the Court, secondary evidence of the contents of a deed cannot be submitted to the jury. No uniform rule can define the requisite evidence in all cases to establish the loss. This must depend on the circumstances of each case. When there is no motive nor interest to suppress the original, and when there is no danger of fraud, less diligence in the search and inquiry for the deed is demanded, than in cases of a contrary character. Ordinary diligence is sufficient for the introduction of an office copy of a recorded deed. The record aifords assurance both of the formal execution of the deed and of its contents ; and there can be no motive to suppress the original. But when it is proposed, solely by the testimony of witnesses, to prove the execution of a deed and its contents, the danger of mistake from ignorance, bias and forgetfulness, even when the witnesses are honest, and the temptation to perjury, which the admission of such evidence offers, require that the conditions on which it may be received should be strictly enforced. The rule stated in 1 Phil. Ev. 258, and abundantly supported by authority, is, that whenever the writing in question is traced to a particular individual, who is alive, he should be called to give some account of the instrument: and if he is dead, inquiry should be made of such persons as must be presumed to have it in their possession. This preliminary inquiry may prevent the setting up of a fictitious deed, as it may result in the discovery that no deed was ever executed. In this case, if Theophilus Floyd were alive and examined respecting the loss, he might prove that no deed was executed by his mother to him; or he could best have proved its loss and contents. Enquiry should next be made of his legal representatives, who must be presumed to have it in their possession. This was not done. The evidence of the loss or destruction of the deed cannot be satisfactory, when the persons who must be presumed to have the possession of it, have not been examined. That Theophilus Floyd resided and died in the State of Alabama, cannot dispense with the examination of his legal representatives respecting the loss of the deed, any more than it should dispense with their examination respecting any other fact necessary to the defendant’s recovery. (Little vs. Delancey, 5 Binn. 266 ; Bush vs. Hasbrouck, 12 Johns. R. 192; Bunch vs. Hurst, 3 Des. Eq. 273 ; 1 Phill. Evid. 256.)

At the trial, the answer of Hugh Floyd to the question, “ Did you ever hear your mother say whose the land was ?” was excluded. The exclusion is excepted to in the several grounds of appeal, because the declarations of Isabella Floyd were relevant and material to shew the adverse possession of Theophilus. The question was not asked in connection with that issue, though it afterwards appeared that her answer might be important to maintain it. If the admission of the answer had been urged on that ground, it would not have been excluded.

The plaintiff claims under the heirs of Isabella Floyd; and her declarations, against her interest, respecting her title, or the character of her possession, or of the defendant’s possession, as adverse to her right to the land, were competent for the defendant They are to be received as admissions which would be evidence against herself, if she was the plaintiff: and equally affect the plaintiff who claims the land under a title derived from her heirs. The acknowledgment of tenancy by a party to the suit, or by the person under whom the party claims, is constantly received in evidence to shew the character of his possession. So declarations of gift are admitted to support an adverse possession in the donee and those claiming under him, against the donor and his privies in estate. The same rule applies to admissions by the owner, against his interest, respecting a disputed boundary. (1 Phill. Evid. 258 ; Sumner vs. Murphy, 2 Hill, 488; Simmons vs. Parsons, in a note to that case.)

On this ground the motion must be granted.

O’Neall, Evans, Wardlaw, Withers and Whitner, JJ. concurred.

Motion granted.  