
    Staunton.
    Carter and Others v. Wood and Others.
    September 29, 1904.
    1. Ejectment — Plaintiff’s Title — Common Grantor. — Where plaintiff and defendant in ejectment claim title under a common grantor, it is unnecessary for the plaintiff to trace his title back of such grantor.
    2. Ejectment — Plaintiff’s Title — Lost Deed — Proof of Contents — Case at Bar. — If a plaintiff in ejectment claims title under a lost or destroyed deed, the proof of its former existence, contents, and loss or destruction must be strong and conclusive before the court will permit a title to be established by parol evidence. A bare copy of an order of a County Court, showing that a deed of bargain and sale from the plaintiff’s alleged grantor to him had been admitted to record, accompanied by proof of the destruction Of the deed-book in which the deed should have been recorded, and of the fact that the grantor owned no other land in that county than that sought to be recovered, and an unauthenticated copy of the alleged lost deed, without proof of the genuineness of the original from which the copy was made, is not sufficient to establish the existence of the deed alleged.
    3. Ejectment — Plaintiff’s. Title — Ground of Defense. — If a statement of the grounds of defense can be demanded in ejectment, the statement furnished in this case was sufficient. As a general rule, a plaintiff in ejectment must recover on the strength of his own title, and no infirmity in defendant’s title can supply defects of proof on the part of the plaintiff.
    Error to a judgment of tlie Circuit Court of Craig county, in an action of ejectment, wherein the defendants in error were the plaintiffs, and the plaintiffs in error were the defendants.
    
      Reversed in part.
    
    
      The opinion states the case.
    
      William A. Anderson and Paris V. Jones, for the plaintiffs in error.
    
      James W. Marshall, Sr., and Frank L. Abbott, for the defendants in error.
   Keith, P.,

delivered the opinion of the court.

Defendants in error instituted an action of ejectment in the Circuit Court of Craig county against plaintiffs in error, claiming to be the owners in fee of a certain tract of land, described by metes and bounds in their declaration, which, as they allege, plaintiffs in error (defendants in the court below) unlawfully withheld from them. There was a verdict and judgment for the plaintiffs, Kellie Bickley and Stewart M. Wood, each foían undivided eighteenth part of the land in controversy, and for the defendants in the court below (plaintiffs in error here) with respect to the residue of the tract.

As both parties 'to the controversy claim under Christian Painter, it will be unnecessary to go back further than his title.

In order to make out their title the plaintiffs offered á certified copy of the proceedings of the County Court of Craig county, at the May term, 1859, from the County Court order book, in the words and figures following: “The following deeds were admitted to record in the clerk’s office of this court since the last term thereof, namely: Christian Painter and wife to William M. and H. P. Wood, bargain and sale.” They followed this with the testimony of John P. Wood, who testified that some time between 1866 and 1872 he saw a deed in the possession of his father, purporting to be made by Christian Painter and wife to William M. and Hugh P. Wood; that about tbe period mentioned he bad copied tbis paper; that be bad never seen Christian Painter, and did not know bis band-writing. Tbe deposition of Hugh P. Wood was taken and offered in evidence, but upon objection made by tbe defendants it was properly excluded by tbe court, upon tbe ground that Christian Painter, tbe grantor, in tbe deed alleged to have been executed by him was dead. Other witnesses were offered and properly rejected by tbe court upon tbe ground that their testimony was either mere hearsay or irrelevant to tbe issues before tbe jury. Tbe clerk of tbe court proved that tbe book in which tbe deeds referred to in tbe order of tbe County Court of Craig county were recorded, bad been destroyed in 1863 by Federal soldiers, and that be bad searched diligently, but in vain, for that deed among tbe records remaining in bis office. There was evidence also before tbe jury tending to prove that Christian Painter owned no land in tbe county of Craig other than that in controversy. It may be well to state that John F. Wood, who made tbe copy of tbe deed, testified that be copied it “just as it was”; that be did not know whether there was anything on it by the clerk of Craig county or not, “If there bad been I guess I would have copied it.” “I was told to copy it and I did.” Tbis is all tbe evidence bearing upon tbe deed from Painter toWilliam M. and Hugh P. Wood, and it is apparent that there is no evidence of the due execution of any deed by Christian Painter and wife to William II. and Hugh P. Wood of tbe land in question.

Tbe bare entry of an order of tbe County Court of Craig county, setting forth that a deed of bargain and sale from Painter and wife to William M. and Hugh P. Wood was admitted to record, is insufficient to convey title. Tbe copy made by John F. Wood, unauthenticated and without proof of tbe genuineness of tbe instrument, a copy of which it purports to be, in no degree tends to prove tbe existence of such original deed, and the negative proof that Painter owned no other land in Craig county is insufficient to establish the existence of the deed in question.

“Where the issue involves the existence and contents of a Avritten paper, the doctrine seems to be well founded in principle that the greater the value of the instrument the -more conclusive should be the proof of its existence and contents. And, where the instrument rises to the dignity and importance of a muniment of title, every principle of public policy demands that the proof of its former existence, its loss, and its contents, should be strong and conclusive, before the courts will establish a title by parol testimony to property which the law requires shall pass only by deed or will. . . . It is the policy of the law, adopited with a view to prevent frauds, that title to lands shall pass only by written instruments; and the difference is more in name than in fact between giving effect to a parol conveyance of lands and establishing a title to lands under an alleged lost deed, upon parol testimony of its contents and loss, unless the proof be clear and conclusive.” Thomas v. Ribble, 2 Va. Decs. 324, 24 S. E. 241.

We are of opinion, therefore, that the paper purporting to be a cop>y of the deed from Painter to the Woods should not have been admitted in evidence before the jury.

Before the trial was entered upon, the plaintiffs in the court beloAv asked that the defendants might he required to state the grounds of their defense. The defendants resisted this demand upon the ground that the statute upon the subject does not ap>ply to actions of ejectment. The court, however, required the defendants to comply with the demand of the plaintiffs, and thereupon the defendants stated, among other grounds of defense, that the plaintiffs have no title to the lands described in their declaration, and that the claim and demand of the plaintiffs, in so far as the defendants are informed as to the same,- are based upon an alleged instrument which does not constitute a valid ground for any claim or title as against the defendants, but is illegal, void, and of no effect as against them.

Without expressing any opinion as to the propriety of compelling a defendant in ejectment to state the grounds of his defense, it is sufficient for the present case to say that the grounds stated were quite sufficient to cover the objections of the defendants to the admission in evidence of the paper purporting to be a deed from Christian Painter. With rare exceptions, none of which are applicable to the case before us, the plaintiff in ejectment must recover upon the strength of his own title. Rhule v. Seaboard Air Line Railway Co., 102 Va. 343, 46 S. E. Rep. 331. No infirmity in the defendant’s title can supply a defect of proof upon the part of the plaintiff. In the absence of the deed, which we have held should have been excluded from the jury, the case of the plaintiffs in the court below was fatally defective.

As the case must be reversed for the reasons given, it is unnecessary to consider any other assignment of error, either upon the part of the plaintiffs in error, or upon the part of defendants in error under Buie IX. of this court.

The judgment of the Circuit Court must be reversed, in so far as it finds in favor of defendants in error PTellie Bicldey and Stewart M. Wood. As to them the judgment and verdict must be set aside, and the case remanded to the Circuit Court, to be there tried in accordance Avith the views herein expressed; and in all other respects the A^erdict and judgment will be affirmed.

Reversed in part.  