
    John A. Sally vs. Rivers Gunter.
    
      Trespass to try title — Practice—Evidence—Exemplification of Record — Will—Deed—Description of land.
    
    The rule of the Court of Appeals is not to go outside of the Judge’s report for the facts of the case.
    Where one is both Judge and Clerk of the Court, his certificate in both capacities is, especially when backed by the certificate of the Governor as to his official character, a sufficient exemplification of a record under the Act of Congress.
    Where the copy of a will on record in another State has been admitted to probate in the Court of Ordinary of this State, an exemplification by the Ordinary may be given in evidence under the Act of this State of 1825.
    Where a party is in possession of a deed of conveyance of land and refuses to produce it, a copy from the Register’s office is admissible in evidence.
    A deed of conveyance of all the grantor’s lands and real estates in South Carolina is sufficiently certain.
    BEFORE O’NEALL, J., AT LEXINGTON, FALL TERM, 1859.
    The report of his Honor, the presiding Judge, is as follows:
    
      “ In this case the grounds of appeal do not make it necessary to report the whole case. David Coalter died in Missouri; his original will is in the records of that State. The copy was duly and regularly exemplified, and I received it, in evidence in place of the original.
    "As to the deed from the executors of Coalter to Wm. C. Preston, notice had been given to the defendant to produce the original. It was proved that the defendant said he had the deed, and would nonsuit the plaintiff. I therefore admitted the copy from the Register’s office.
    
      
      “ As to the description of the land in the deeds mentioned in the third ground of appeal, I am not aware of the failure in that respect.
    
      “ The plaintiff proved a clear title to the land and a trespass. Beyond all doubt, the defendant’s grant was junior to the plaintiff’s. The plaintiff had a verdict.”
    The defendant appealed, and now moved this Court for a nonsuit, and failing in that, for a new trial, on the grounds:
    1. Because his Honor, erred in holding and admitting in evidence, as competent, the copy of the will of David Coalter, deceased.
    2. Because his Honor erred in deciding and admitting in evidence the copy of the deed from the executors of David Coalter, deceased, to Wm. C. Preston.
    3. Because the deeds from the executors of David Coalter to W. C. Preston, and from him to John D. A. Murphy, under which the plaintiff deduced title, do not describe the land claimed by the plaintiff with legal and sufficient certainty, and are therefore void for uncertainty as to the tract of land in dispute.
    
      Bauskett, for appellant,
    submitted, that a copy of a will is not admissible in evidence, to establish a link in a chain of title to land, except as secondary evidence, where the original has been lost or destroyed. That the copy offered in this case is not an exemplification under the Acts of Congress of 1790 and 1804. 1 Stat. U. S. 122, and 2 Stat. H. S. 298. Darlyh Lessee vs. Mayer, 10 Wheat. 469. There is no certificate of any judge or judicial functionary of any kind, and none that the certificate of the Clerk of the Court is in due form, or entitled to faith and credit. The admitting -a will to probate in another State is not a judicial proceeding that can affect tbe title to real estate here. The Act of 1858, page 701, refers to wills admitted to probate in this State, in the manner prescribed by the Act of 1889, and denominated “ due form of law." 11 Stat. 59.
    On the second ground of appeal, he contended that, assuming defendant had the possession of the deed from the executors of Coalter to Preston, and had been notified to produce it, yet the plaintiff did not furnish admissible secondary evidence of its existence, or contents. By this he meant that a copy certified by a Register, of a deed that had not been recorded at least ten years before, is not, of itself, evidence of its existence or contents. 11 Stat. 255.
    The thing granted should be described with sufficient certainty to be distinguishable from all other like things. In this case, the particular tract of land is not described in either of the deeds referred to. 4 Kent Com. 466.
    
      Fort, contra,
    cited 12 Stat. 601.
    
      
      
         The deed from the executors of Coalter to Wm. 0. Preston, dated May 6, 1829, and recorded February 1, 1855, after describing twenty-seven tracts, then says, “ together with all other lands and real estates whatsoever and wheresoever situated in the State of South Carolina.” The land in dispute is not among the tracts described.
      The deed from Wm. C. Preston to John D. A. Murphy describes the premises as follows: “All the lands belonging to the estate of David Coalter in the District of Orangeburg and Lexington, which were conveyed to me by Wm. Harper, David H. Means, and David Humph, executors of the said David Coalter, by deed bearing date the sixth day of May, eighteen hundred and twenty-nine, as will more fully and particularly appear by the said deed in which the lands are described, except such portions of the said lands as I may heretofore have sold.”
      Dated June 24, 1883; recorded October 27, 1855.
    
   The opinion of the Court was delivered by

Johnstone, J.

The objection taken in the first ground of appeal, to the proof of the will of David Coalter, does not appear to be valid.

Our rule is not to go out of the report of the Circuit Judge for the facts of the case. The report is, that the original will is in Missouri, where the testator died, and that a copy, duly and regularly exemplified,” was received in evidence.

But were we to- go beyond the report, and consider the exemplification produced before us as identical with the one offered on the trial, we are still of opinion that it was properly received.

Considering the proceedings in the Court of Missouri, by which the will was established and admitted to probate, as judicial proceedings, the only defect in the exemplification which has been suggested is, that the certificate of the Clerk of that Court is not indorsed by the certificate of the presiding Judge of the Court to the fact that the former was the Clerk. It appears, however, that the person attesting as Clerk was also the presiding Judge ; and he certifies for himself. This appears to us to be a sufficient compliance with the Act of Congress of 1790, especially when further backed by the certificate of the Governor to his official character.

If we regard the will in the light of a record lodged in an office in Missouri, apart from its connexion with the judicial proceedings which were had upon it, the attestation of the keeper of the record, with the further attestation of the Governor to his official character, both of which appear in this exemplification, is in conformity with the Act of Congress of 1804 in such cases.

We have also an Act of our own, passed in 1823, which provides that, after the notice therein prescribed, exemplifications of wills, under the hand of the Ordinary and the seal of the Court in which such will may have been admitted to probate, or under the hand and seal of any other officer who has legal possession, of the same, shall be admissible evidence in all Courts of law and equity in this State, whether the same may regard the title to real or personal property. It appears here that, after the statutory notice, an exemplification from the Ordinary of this district was given in evidence, showing that a copy of the will of Ooalter was established before him, and probate granted. My individual opinion is, that this was sufficient evidence of the will on the trial.

With respect to the other grounds of appeal, it is hardly necessary to notice them. If a party is in possession of a deed and refuses to produce it, the other party is at liberty to prove its contents by secondary evidence, being the best •evidence he can give ; and if his proof consists of an office copy, it has the merit of being more certain than oral evidence. And as to the uncertainty of the lands covered by the deeds, id certum est, quod cerium reddi potest. The jury have, by their verdict, affirmed, that the land claimed by the plaintiff is covered.by the deed under which he claimed it. The deed is sufficiently certain to be located, and has been located.

It is ordered that the motions be dismissed.

O’Neall, C. J., and Wardlaw, J., concurred.

Motions dismissed. 
      
       1 Brev. Dig. 317, Sec. 11.
     
      
       1 Brev. Dig. 320, § 22.
     
      
       6 Stat. 209.
     