
    [No. 1,067]
    FLOWERY MINING COMPANY, Appellant, v. NORTH BONANZA MINING COMPANY et al., Respondents.
    Deed — Recording oe Seal not Necessary — When Ensealing will be Presumed. — The recording of the seal to a deed is not absolutely essential. ' If the original instrument can not be produced, and the record thereof is offered in evidence, the existence of the seal will be presumed from the statement in the deed that the grantor did set his hand and affix his seal thereto, and from the attestation clause that it was signed, sealed, and delivered in the presence of witnesses.
    Appeal from the District Court of the First Judicial District, Storey County.
    The facts are stated in the opinion.
    
      R. II. Taylor and E. F. Preston, for Appellants:
    The court erred in sustaining the objection to the offer made of secondary evidence of the deed. The deed shows an ensealing. The subscribing witnesses attest the enseal-ing. The presumption is that it wras sealed, and the burden of proof is upon the party mailing the objection. Om-nia prcesumuntur rite et solleniter esse acta donee probe-tur in conirarium. (Gray v. Gardiner, 3 Mass. 398; Pejep-scut v. Ransom, 14 Mass. 144; McQueen v. Parquhar, 11 • Yes. 467; Marine Inv. Co. v. Haviside, 5 (L. B.) Eng. & Irish App, 630; 2 Best on Ev-., sec. 362; Talbot v. Ilodson, 7 Taunt. 251; Burling v. Paterson, 9 G. & P. 572; Doe v. Phelps, 9 Johns. 169; Supervisors v. White, 30 Barb. 78; Mc-Burney v. Gutter, 18 Id. 211; Jones v. Martin, 16 Cal. 166; Estate of Stichnolh, 7 Nev. 234.)
    
      Letois & Deal, for Bespondents:
    I. The word deed, as used in the statute (1 Comp. L. 76), means a written instrument under seal. That is not only the legal meaning of the word, but its common signification. (Bouv. Die. 444; 1 Comp. L. 96; Civ. Pr. Act, sec. 234.)
    II. A deed of real estate must be under seal, except where that formality is dispensed with by statute. (3 Wash, on Beal Prop., 244, 245; 2 Hill, on Beal Prop. 424, 425; Lessee of Merritt v. Horne, 5 Ohio St. 319; 4 Crui. 28; Under-, wood v. Gampbell, 14 N. II. 396; 1 Chitty on Cont. 4; 1 Wait’s Actions and Defenses, 674.)
    ■ III. There'being no seal indicated in the record, there is no more presumption that there was a seal than there would have been if the original deed had been presented without a seal. (Ghilton v. People, 66 Ill. 501.)
    IY. The record offered must stand for itself, and can not be aided by any presumptions. (Downing v. Ilaxton, 21 Kan. 178; Georgia R. R. Co. v. Hamilton, 59 Ga. 171.)
    ■ Y. Without the production of the subscribing witness and his testimony as to the fact of the ensealing of the deed, the record stands as if there had been no subscribing wituess. If the original deed had been produced, it would have been necessary to produce the witness himself to prove the execution of tbe deed. (1 Greenl. on Ev., secs. 569 and 569, A.)
   By the Court,

Hawley, J.:

Upon tbe admission of. defendants’ counsel that tbe original deed was lost, tbe plaintiffs offered in evidence tbe record of a deed from tbe Flowery mining company, executed by William I. Cummings, late sheriff of tbe county of Storey, to John W. McKenney, as secondary evidence of its contents.

Tbe attestation clause reads as follows:

“In witness whereof, tbe said sheriff, tbe said party of tbe first part, has hereunto set bis band and seal, tbe day and year first above written. W. I. Cummings, late sheriff. * * * Signed, sealed, and delivered in tbe presence of Philip Stoner.”

This deed was properly acknowledged before a notary publie. Tbe defendants objected to tbe admission of this deed in evidence upon tbe ground that there was no. proof of tbe ensealing of tbe deed. Tbe court sustained tbe objection and granted a nonsuit. Did tbe court err in excluding tbe record of tbe deed as evidence? The decisions, rendered upon tbe principles of tbe common law, all declare that it is just as necessary that a deed should be sealed as that it should be signed and delivered. Tbe respondents’ counsel, therefore, claim that tbe record, in tbe absence of any evidénce to tbe contrary, must be taken as conclusive that tbe original deed was not sealed. This position has much reason to support it, and is sustained by Switzer v. Knapp, 10 Iowa, 75, where tbe court said: “Tbe complainant further asks, what if tbe copy does not show a seal. A scroll stands for this, and bow can a scroll be copied ? It is copied tbe same as a seal is, by tbe word ‘ seal,’ or by a scroll, or by this and tbe word ‘seal,’ or tbe letters ‘l. s.’ without it. Tbe copy of a deed without any mark indicating a seal, is evidence that there Avas none.”

On tbe other side, appellant contends 'that tbe ensealing of tbe deed will be presumed, and that tbe burden of proof,' to the contrary, rests upon tbe party making tbe objection. Counsel rely upon the authority of 1 Sugden on Powers, 283, where, after stating that sealing is essential to a deed, the author says that “where the instrument is a deed, and on proper stamps, and it is stated in the attestation to have been sealed and delivered in the presence of the witnesses, it will, in -the absence of evidence to the contrary, be presumed to have been sealed, although no impression appear upon the parchment or paper.” No authorities are cited, by the author, in support of this text. The text is, however, followed by Matthews on Presumptive Evidence, 36, and by Taylor on Evidence, see. 128.

We agree with respondents’ counsel, that the English cases cited by appellant do not support the text as above stated, and if the case rested upon the authorities presented in the briefs of the respective counsel, we would be inclined to sustain' the action of the court in excluding the record of the deed. But, upon further examination, we find that a majority of the decisions in the United States are to the effect that the recording of the seal is not absolutely essential; that if the original instrument can not be produced, the existence of the seal will be presumed, from the statement in the concluding portion of the deed, that the grantor did set his hand and affix his seal thereto, and from the attestation clause, that it was signed, sealed, and delivered in the presence of witnesses.

In Geary v. The City of Kansas, 61 Mo. 379, no seal appeared on the record of the certificate of acknowledgment to the record copy of a deed. The court said: “It is not necessary for the recorder to attempt to copy the seal, nor is it necessary for him to note the place where the seal was placed in the original; the statement in the body of the certificate, that the clerk who made it affixed 'the seal of said court, authorizes the presumption that such seal was affixed, and the general current of authority favors this view. (Hedden v. Overton, 4 Bibb, 406; Griffin v. Sheffield, 38 Miss. 359; Sneed v. Ward, 5 Dana, 187; Smith v. Dall, 13 Cal. 510.)”

Our statute relative to the acknowledgment and record-iug of conveyances is substantially tbe same as the statute of California. Terry, C. J., in delivering his opinion in Smith v. Dall, supra, said: “The conveyance itself is required to be copied into the record, in order that parties may determine its sufficiency and the. character of the estate conveyed. To accomplish this end it is not necessary that the seal should be copied upon the book; it is enough if it appear from the record that the instrument copied is under seal. This, we think, is sufficiently shown by the record of the conveyance from Richardson. The deed purports to be under seal, and to have been signed, sealed, and delivered in the presence of the subscribing witness.”

Sanderson, J., in Emmal v. Webb, 36 Cal. 203, considered that the question admitted of debate, but did not decide it. In a recent decision by Mr. Justice Field, of the supreme court of the United States, he adds the weight of his judicial sanction in terms direct, clear, and explicit, to the principles announced in Smith v. Dall. In Le France v. Richmond, 5 Sawy. 603, he said: “ There is no doubt that a seal is essential to a conveyance of real property. * * * The general doctrine with reference to instruments by which real property is transferred is the same in California as in other states — the instruments must be sealed. The transfer inter vivos can only be made by deed, and a deed implies sealing; its definition is £ a writing, sealed and delivered by the parties.’ (2 Blackstone, 295.)”

After copying the text from Sugden on Powers, already quoted, he adds: “The presumption thus indulged is more just and natural where the original instrument is lost, and resort is had. to secondary evidence of its. contents. The statute, in providing for the record of deeds, does not require any note or entry by the recorder of the existence of a seal to the original; yet copies from the records are made admissible in evidence with the like effect as the originals, when the latter are beyond the possession or control of the party. The existence of the seal to the original must, therefore, in the majority of cases, where copies are used, be a matter of presumption, and the fact may be fairly presumed from any expressions in the conclusion of the instrument, as in the copy produced in the present case or in the attestation indicating that a seal was affixed.”

In the light of these authorities we think the court erred in sustaining the defendants’ objection.

The judgment of the district court is reversed, and the cause remanded for a new trial.  