
    Quartus Gillmore et al. v. Emeline G. L. Fitzgerald.
    Where parol evidence is relied on to prove a deed alleged to have been lost, such evidence must clearly and satisfactorily show the existence and execution of the supposed deed, and so much of its contents as will enable the court to determine the character of the instrument.
    Motion for leave to file a petition in error to the District Court of Lorain county.
    On the 23d of September, 1873, the defendant in error filed her petition in the Court of Common Pleas of Lorain county, against the plaintiffs in error, to recover the sum of $600, with interest from the 20th day of August, 1872.
    The petition avers that the defendant in error, who was then the wife of Almon R. Eitzgerald, was, on the 3d day of August, 1872, as devisee of her former husband, Armistead Lumm, the owner of and seized in fee-simple of lots 224, 225, and 226, in the village of Charleston, in Lorain county; that Quartus Gillmore, now deceased, the father of the plaintiffs in error, in his lifetime, for a valuable consideration, conveyed to Arm: stead Lumm, who was then the owner of lot 224 and the undivided half of lot 225, the remaining undivided half of lot 225 and the whole of lot 226, by a good and sufficient deed, which was delivered toLumm by Gillmore, but was not caused to he placed upon record by Lumm, and was afterward lost; that on the 3d day of August, 1872, the defendant in error—her husband, Almon R. Eitzgerald, joining with her in the deed—conveyed said lots 224, 225, and 226, in fee-simple, with good and sufficient covenants of general warranty, to Thomas L. Nelson, for the consideration of $1,200; that, after making the conveyance to Nelson, it was discovered that the conveyance from Quartus Gillmore, deceased, to her formei husband, had not been recorded, and thereupon, for the purpose of perfecting the title conveyed to Nelson, she procured the plaintiffs in error, who were the only heirs at law ■of Quartus Gillmore, deceased, to convey to her, by deed of quitclaim, all their title and interest in and to the undivided half of lot 225 and the whole of lot 226, “upon the express agreement and understanding, by and between the plaintiff and defendants, that the $600 of the purchase-money not then paid by the said Nelson for said lots, should be paid by said Nelson to the plaintiff if it should be made to appear that said decedent Gillmore did make the conveyance as aforesaid to said Lumm, as was then ■claimed by the plaintiff, and that no part thereof should be received by the defendants;” that the plaintiffs in error, without waiting; for the determination of her claim, demanded and received from Nelson the six hundred dollars, ■appropriated the same to their use, and refused, on demand, to pay the same to her, although she was the owner of the lots in her own right, as her separate property, and the plaintiffs in error had no interest in or title to the lots in question.
    The answer admits that Armistead Lumm died seized in fee-simple of the whole of lot 224, and the undivided half of lot 225, described in the petition, and that he devised the same, by his last will and testament, in fee-simple, to the defendant in error; but denies that Quartus Gillmore, de- - ceased, in the lifetime of Armistead Lumm, executed and ■delivered to him a good and sufficient deed for the remaining undivided half of lot 225 and the whole of lot 226, described in the petition, or that the deed was afterward lost, or that Armistead Lumm was, at any time before his death, seized of any interest in the lots last above described, and avers, that on the 17th day of May, 1866, Quartus Gill-more and Elizabeth, his wife, for a valuable consideration, conveyed the premises in controversy by deed in fee-simple to the plaintiffs in error, and his remaining son, Cornelius Gillmore, who, on the 1st day of April, 1867, for a valuable considei’ation, conveyed his interest in the same, by deed in fee-simple, to the plaintiffs in error; that thereby the entire ■estate in fee-simple in the premises became vested in the plaintiffs in error, and that they had no notice or knowledge of the claim of the defendant in error to the premises at the time of their purchase of the same.
    The answer further denies the statement of the petition in relation to the agreement between them and the defendant in error, at the time of the execution and delivery to her of the quitclaim deed for their title to said lots, and avers, that the conveyance was executed and delivered to her “ upon the express terms and conditions that the plaintiff should return to her home in Missouri and send the defendants a copy of a deed which she then claimed to-have at her said home, made by Quartus Gillmore, deceased, to Armistead Lumm, deceased, conveying said premises to said Tin mm, upon receipt of which said defendants would quietly and peaceably yield up all claim to any interest in said premises; and in the event she could not find said deed among her papers, one-half of said purchase-money was to be paid over to them.”
    The answer further avers that afterward, on the 2d day of December, 1872, they were advised by the defendant in error that she was unable to find the deed, and, with her consent, the purchaser, Thomas L. Nelson, paid to them $600, one-half of the purchase-money, for their interest in the lots described in the petition.
    The reply denies generally all the allegations of the answer which are inconsistent with the statements of the-petition.
    The jury in the Court of Common Pleas returned a verdict for the plaintiff’, on which, after overruling the motion of the defendants for a new trial, to which they excepted, the court rendered judgment. The judgment was afterward affirmed by the District Court, on a petition in error filed therein by the present plaintiffs in error, and they now ask leave to file a petition in error to reverse the judgment of the District Court.
    
      G. W. Johnston, for the motion:
    Eor the rule, where a deed is lost and a party desires to< •prove its contents, see Mariner v. Saunders, 5 Gilmer, 113; Taylor v. Biggs, 1 Peters, 591; 3 Comstock, 424.
    
      John G. Hale and P. PL. Boynton, contra:
    On the question of proving the contents of a lost deed, the court is referred to 1 Greenl. on Ev. 616, sec. 572; Lessee of Blackburn v. Blackburn, 8 Ohio, 81; Lessee of Allen v. Parish, 8 Ohio, 107; 1 Starkie on Ev. 392; 1 Greenl. on Ev. 101, note; lb. 551, sec. 509; lb. 597, sec. 558, note 3; 7 Wend. 125.
   Lex, J.

The principal ground assigned in the motion of the defendants, in the Court of Common Pleas, for a new trial, was that the verdict of the jury was against the evidence, and the question to be determined is: Did that court err in overruling tbe motion?

The right of the plaintiff to recover of the defendants the purchase-money received by them of Nelson, for their title to one-half of the premises described in the deed of the defendant in error and her husband to Nelson, depended upon proof, to be produced by her, of the existence of a deed from Quartus Gillmore, the father of the plaintiffs in error, to Armistead Lumm, for the premises described in the deed made by the plaintiffs in error to her, to perfect the title of Nelson to the premises described in her deed to him.

This proof, in our opinion, she failed to produce. The testimony given at the trial, the whole of which is set out in the bill of exceptions, fails to show, clearly and satisfactorily, the loss, the contents, or the'substanee of the contents of the operative parts of the supposed deed.

Armistead Lumm, the former husband of the defendant in error, died in October, 1859, and at the time of his death, .and for many years prior thereto, resided in the village of Charleston, at which place Quartus Gillmore also resided.

It is not pretended that Lumm, at any time prior to his death, exercised any acts of ownership over the premises in question or paid the taxes thereon, while it is shown by the evidence in the case, that G-illmore paid the taxes on the undivided half of lot 225 and the whole of lot 226, up to the time of the sale and conveyance thereof to his sons in 1866, who afterward, and until the conveyance to Nelson, paid the taxes thereon.

If the lots were conveyed to Lumm by Gillmore, the •deeds must have been in his possession at the time of his death, and must, with other valuable papers, have passed into the hands of the defendant in error, as his devisee at that time; yet, in 1860, when she was about to dispose of the same premises afterward conveyed to Nelson, to one Daniel Wallace, and afterward, in 1866, when about to dispose of them to Mrs. Slater, according to her testimony, she had no knowledge of a deed for the premises from Gillmore to Lumm, but depended for her title to them, upon a conversation which she claims to have had with Quartus Gill-more in 1860, and again in 1866, in the presence of Edmund Gillmore, in each of which conversations Quartus Gillmore stated, in answer to her question as to how she became the owner of the whole of lots 225 and 226, that he and Mr. Lumm had made an exchange of lots, by which his title to the undivided half of lot 225 and the whole of lot 226 were conveyed by him to Mr. Lumm in consideration of other lots in Charleston conveyed to him by Mr. Lumm. Edmund Gillmore, in his testimony, denied having heard any such conversation between his father and the defendant in error.

Although the defendant in error claims to have had knowledge of the existence of the deed from Gillmore to Lumm prior to 1871, yet it appears from her testimony that she then first examined it. As the result of this and several subsequent examinations of the dee'd, the last of which occurred in July or August, 1872, she states that it appeared to be a perfect deed from Quartus Gillmore and Elizabeth, his wife, to Armistead Lumm for the lots in question, but is unable to state the consideration named in it, the contents or substance of the contents of the granting clause, or of any of the operative clauses of the deed, the date of its ex-écútion, by whom attested, or the name or official character of the person before whom it was acknowledged.

The same want of ability to state the contents or the substance of the contents of any of the operative clauses of the deed, the date of its execution, the names of the attesting witnesses, or the name and official character of the person before whom’the acknowledgment was taken, is apparent in the testimony of Wesley Lumm and Eerdinand D. Cobb, the son and nephew of the plaintiff, who claimed to have seen and examined the deed in 1871 and 1872, and who were the only other witnesses examined to prove the contents of the deed claimed by the plaintiff to have been lost.

This testimony in our opinion was not sufficient to entitle the defendant in error to recover under the agreement asset out in her petition, and hence the unanimous conclusion that the Court of Common Pleas erred in overruling the-motion of the defendants below for a new trial, and that tiie District Court erred in affirming the judgment of the former court.'

The motion is therefore granted, the judgments of the District Court and Court of Common Pleas are reversed, arid the cause remanded to the last named court for further-proceedings.

Judgment accordingly.

McIlvaine, C. J., Welch, White, and Gilmore, JJ., concurred.  