
    Charles Edmondston and James L. Petigru v. John J. Hughes.
    A deed tilirty-five years old was allowed to go to the jury as evidence, upon proof of the handwriting of the two subscribing witnesses, who were dead, and of its having been duly registered in the proper office.
    After proof of the signatures of the subscribing witnesses, who are dead, “it would seem, that it is not necessary to prove the grantor’s handwriting ; for his signature, seal and delivery are proved when the handwriting of the witnesses is proved. But it is usual to prove his handwriting, and where it can be done, it is safest and best to do it.” — (0’Neall,J.)
    Upon evidence that an ancient deed had been legally proved before a justice of the-peace and registered — “If thex-e were no other circumstance in this case, I should say that that warranted the judge in sending a deed thirty-five years old, to the jury.” — (Id.)
    Before Gantt, J., at Georgetown, Pall Term, 1839.
    Trespass to try title to land. The plaintiffs offered, in evidence, a deed dated April 1, 1805, purporting to be a conveyance of the land in dispute from William Frierson, sheriff of Georgetown, to Adam Tunno, and which was essential to complete their chain of title. It was in proof that Frierson was sheriff at that time, and left the district soon after; that the signatures of the two subscribing witnesses (whose death appears to be admitted, though the fact does not appear, either in the report of the circuit judge or in his notes of the evidence,) were their genuine handwriting; and that the deed had been proved before a justice of the peace, and was duly recorded in the Register’s office. The handwriting of Frierson, the grantor, was not proved, nor was it shown that there had been any possession in the grantee under the deed.
    The defendant insisted 'against the admissibility of the deed in evidence, and moved for a nonsuit; but the Court overruled the objection, and sent the case to the jury, who found for the plaintiffs.
    The defendant appealed, and renewed his motion for a nonsuit.
   Curia, per O’Neall, J.

To answer properly the question raised by this appeal, it will be well to understand what is the legal effect of proof of the handwriting of subscribing witnesses. In M’EIvee v. Sulton, (2 Bailey R. 128,) it is correctly said to establish the deed, upon the presumption,— 1. That if the deed had not been executéd as it purports to have been, the witnesses would not' have subscribed their names — and, 2. That if the . witnesses "were alive, they would give all the necessary evidence to establish the fact of execution. These being the legal conclusions from such secondary evidence, introduced as the best which the case is susceptible of when the witnesses are dead; it would seem to follow, that it is not necessary t,o prove the grantor’s handwriting ; for his signature, seal, and delivery, are proved when the handwriting of the witnesses is proved. But it is usual to prove his handwriting, and where it can be done it is safest and best to prove it.

Here, however, the deed is an ancient one. Thirty-five years have passed since its execution. Twenty years, in this State, is the time after which, generally, presumption stands in place of proof, for the memory of man is supposed not to go back beyond it; and deeds, if they are thirty years old, with possession under them, or other circumstances accompanying them and showing their authenticity, are admitted in evidence without proof of execution. In Wagner, et al., v. Aiton, (Rice R. 100,) a deed thirty-nine years old was admitted in evidence, on proof of the handwriting of one witness, and of the registry of the deed. In that case, the Court remarked that the proof was all which could be given, and enough to establish the existence of the paper more than thirty years before. In Jackson ex dem. Livingston, et al., v. Burton, (11 Johns. R. 64,) the subject underwent the review of the Supreme Court of New York, and a deed forty-four years old was admitted in evidence, on proof of the handwriting of one of the subscribing witnesses. Ch. J. Kent said that “ the proof of the deed was prima facie sufficient,” nor was it even contended that it would have been otherwise, if proof had been given of the handwriting of the other subscribing witness.

Among our own decisions, a single case seems to be at variance with the position for which I am contending. (Sims v. De Graffenreid, 4 M’C. 253.) But that case is very imperfectly reported; nor does that go so far as to decide that, upon evidence of the death of the witnesses, and proof of their handwriting, the deed would not have been proved. The decision there was, that the death and evidence of the handwriting of one witness was not sufficient.

Upon a subsequent trial, tbe death and handwriting of the other witness being proved, as well as the registry of the deed, the plaintiff again obtained a verdict, which was not disturbed.

The case of Cornneil v. Bickley, (1 M’C. R. 466,) where the grantor’s. handwriting was proved, and the subscribing witnesses were out of the State, put the objection to the proof of a recent deed upon the absence of evidence of the handwriting of the latter. From which it appears, that proof of the grantor’s handwriting did not, per se, establish the factum of execution, and that the handwriting 'of the witnesses must be proved to establish it. The reason of this is plain ; in ordinary cases, the grantor could not prove the execution of his own deed;. and, if he is incompetent ás a witness, it would seem to follow that proof of his handwriting could only be a circumstance in aid of the proof of execution, and not essential to it.

_ Indeed, in no case of secondary evidence, is plenary proof to be expected. Such proof as will create a belief of the fact is all that can be required. When subscribing witnesses to a deed or will are dead, or removed, less proof is to be looked for than might be’obtained if they were present; and if many years have elapsed since the execution of the paper, the proof becomes, of course, more difficult and less full. In Stockdale v. Young, (2 M’C. R. 531,) there was a deed from John to Edward Rutledge, witnessed by Keating Lewis Simmons and John. Dunlap, Esqrs. The parties and witnesses being dead, the deed, wdiich was twenty-six years old, was admitted, on proof of the grantor’s handwriting and of that of one of the subscribing witnesses, that of the other béing difficult of proof. That case show's that there is no inflexible rule which compels the Court to require in all cases proof of every matter which may usually be given, and also, that, when secondary evidence is resorted to, which satisfies the mind of a fact, the jury may find it accordingly. So in Duncan v. Beard, (2 N. M’C. 400,) the fact that an ancient will was found in the proper- office, and had been admitted to probate, was held to be such a mark of authenticity as would justify the Court in permitting it to go to the jury. And the reason of that decision reaches another circumstance in this case. By an Act of the Legislature, deeds are allowed to be recorded on being proved before a justice of the peace. And an attested copy of a deed thus recorded is, in the event of the loss of the original, evidence without other proof. When a deed is found to have been legally proved and registered, it is as strong a proof of its authenticity as to find a will in the proper office. If there were no other circumstance in this case, I should say that that warranted the Judge in sending a deed thirty-five years old to the jury.

See 2 McM. 498 ; 1 Rick. 56; 1 Sp. 191. An.

Harllee, for the motion;

Lesesne, contra.

Motion dismissed; the whole Court concurring. 
      
       Also possession.
     
      
       See 11 Rich. 320; post, 272. An.
      
     
      
       See 2 N. & McC. 55. An.
      
     
      
      
         7 Stat. 247. An.
      
     