
    Joseph Edwards and Others vs. Joseph Edwards, Jr.
    
      Evidence — Loss of Deed.
    To pro.ve loss of a deed executed fifteen years before the trial, it was shown that it was delivered to the grantor at the door of the clerk’s office to he recorded ; that it had never been recorded, and was not in the clerk’s office; that the grantor had afterwards conveyed the land to defendant, and had removed from the State : Held, that the evidence was sufficient to let in secondary evidence of the existence and contents.
    The question of loss was submitted to the jury: Held, that their verdict for plaintiff, establishing the loss, must be considered as having removed all doubt.
    BEFORE O’NEALL, J., AT GREENVILLE, FALL TERM, 1858.
    Tbe report of bis Honor, tbe presiding Judge, is as follows:
    “ Tbis was an action of trespass to try title.
    “ Tbe plaintiffs are tbe children of Jesse Edwards, to whom tbe land in dispute was twice conveyed by bis father: 1st, absolutely; that deed was produced by defendant, but never recorded; 2d, to him for life, with remainder to bis children. Jesse Edwards was in possession more than ten years. Lewis Threlkeld proved that a copy deed, which be produced, was a true copy of a deed executed by Jesse Edwards, in bis presence and Esquire Barbary’s, who subscribed as witnesses. Tbe execution was proved before a magistrate. There was no seal on tbe copy, and yet both witnesses proved that tbe deed was signed, sealed., and delivered, (or duly executed.) Tbe original deed Threlkeld proved, after having been proved before a magistrate, was banded by him to Jesse Edwards, at tbe door of tbe clerk’s office, to be recorded. It bad never been put on record, nor could tbe deed be found on examination in tbe clerk’s office. Jesse Edwards removed from tbe State. I admitted tbis copy.. Its contents were a release of tbe life estate of Jesse Edwards to tbe remaindermen, bis • children. It was dated 19th December, 1843. There was evidence from which tbe minority of several of tbe plaintiffs might have been inferred. Tbe objection that that matter bad not been shown, was started by Mr. Elford in bis argument to tbe jury. Mr. Perry alleged it was a mere oversight on bis part. I allowed him to put back Kemp, who knew the plaintiffs in Georgia, where they lived. He proved tbe minority of several of tbe plaintiffs.
    “ Tbe defendant relied upon a deed to himself for the land, dated 14th February, 1845, and possession from that time to tbe present.
    
      “ That deed was duly recorded, and was entitled to be preferred, unless tbe defendant bad explicit notice of tbe deed under which the plaintiffs claimed.
    “ Upon that question, Threlkeld proved that be met tbe defendant at Greenville, who told him be bad bought Jesse Edwards' land. Tbe witness asked him if be bad not got into trouble; that Jesse Edwards could not sell. He said be did not care; be bad bis father’s, bond to indemnify him. He would pay for tbe 'land, if Jesse Edwards’ children sent him a title.
    “Joseph Powell, Esq., proved that be prepared a deed, which was before him, from Jesse Edwards’ children to Joseph Edwards, tbe defendant, for tbe land. He said bis understanding was, if it was executed by them, tbe defendant would pay for tbe land. Tbe deed was signed and sealed by all wbo were of full age, and offered to defendant if be would pay the price. He refused to pay.
    “ This deed was produced on tbe trial.
    “ A. J. Kemp proved that tbe defendant told him that be bad written to the plaintiffs, if all wbo were of full age would fix up the title, they could receive all their share of his father’s estate.
    
      “ Esquire Barbary proved that the defendant told him he might have to give up the land when the youngest child came of age, but in the meantime he could cut off all the timber. He said that the defendant had cut off all the timber, and that the timber thus cut was worth two dollars per acre. The tract contained one hundred and sixteen acres.
    “The'case was carefully submitted to the jury: 1st, on the question of the loss of plaintiffs’ deed. They were told unless the proof satisfied them of the loss, the plaintiffs could not recover.
    “ 2d. They were told unless the deed was sealed, it could not avail. The copy was unsealed; but the proof might satisfy them that the original was sealed.
    “ 3d. They were instructed, unless the defendant had explicit notice of the plaintiffs’ deed, his recorded deed must prevail. They were referred to Threlkeld, Powell, Kemp, and Barbary, and they were told unless their proof satisfied them that the defendant knew just as much about that deed as if he had seen it on record, the plaintiffs could not recover.
    “ 4th. They were told that the defendant’s possession for thirteen years would prevent a recovery, unless some of. the plaintiffs were minors.
    “ 5th. If the jury thought the plaintiffs were entitled to recover on all these points, then they would be entitled to recover the land and such damages as the jury thought might fully compensate them for the timber cut off.
    “ The jury found for the plaintiffs the land, and, I think, $175 damages.”
    The defendant appealed, and now renewed his motion for a nonsuit upon the grounds :
    1. Because the paper purporting to be a copy deed from
    
      Jesse Edwards to tbe plaintiffs, wbicb was produced in evidence of tbe title of tbe plaintiffs, and which was proved by W. D. Threlkeld to be an exact copy of the original, was without a seal, without which the original paper would not be a valid conveyance of land.
    2. Because the plaintiffs’ testimony established the fact that the defendant had1 been in peaceable and adverse possession of the land in dispute for thirteen years; and there was no testimony to show that any of the plaintiffs or any of the parties claiming the land were minors, until after the argument was closed, when, it is respectfully submitted, the Court erred in admitting such testimony.
    3. Because the testimony of the plaintiffs’ witnesses did not afford such proof of title in the plaintiffs as entitled them to have the case submitted to the jury.
    And failing in that motion, then he moved for a new trial, upon the grounds:
    1. That the proof of loss of the original deed was'not sufficient to warrant the introduction of a copy in evidence.
    2. Because the paper purporting to be a copy of the original had no seal, and such a paper could not convey land.
    3. Because the deed from Jesse Edwards to the plaintiffs was never recorded, and was void as against the subsequent deed to the defendant, no sufficient proof of notice having been established against the defendant.
    4. Because, it is respectfully submitted, that his Honor erred in permitting plaintiffs’ attorney to examine a witness to prove tbe minority of some of tbe plaintiffs after the argument was concluded.
    5. Because by reason of tbe insufficiency of such proof of title in tbe plaintiffs, and for tbe other causes set forth above, tbe verdict for the plaintiffs was contrary to law and evidence.
    
      Allford, for appellant.
    
      Perry, contra.
   Tbe opinion of tbe Court was delivered by

O’Neall, J.

This Court concurs in the ruling of tbe Judge below, and only on tbe first ground deems it important to add a word.

To permit secondary evidence of a deed it is necessary that there should be some evidence of tbe loss.

Tbe loss of tbe deed must be first shown, at least prima fade, before a step can be taken. Tbe Judge must necessarily decide on tbe showing whether it is sufficient to admit tbe proof of tbe existence and contents. .

Tbe proof, it is true, in this case looks to be slight, until it is remembered that the deed was traced to tbe possession of tbe grantor himself, and who afterwards conveyed to tbe defendant, and is now out of tbe State. He was to have tbe deed recorded; it was delivered to him for that purpose at tbe door of tbe clerk’s office. It has not been recorded; it is not to be found in tbe clerk’s office, where search has been made.

Jesse Edwards, tbe grantor, who conveyed after bis conveyance to the plaintiffs, was interested to destroy tbe deed. He is now beyond tbe power of tbe Court. Fifteen years have passed since tbe execution of tbe deed. These facts „ make out, I think, a prima fade case of loss.

To this now must be added tbe verdict of the jury to whom the question of loss was submitted, and as was said by Whit-ner, J., in Berry vs. Jourdan, 11 Rich. 76, “if any doubt has been entertained upon the proof then before the Judge, that doubt must be entirely removed by the sequel in the testimony clearly corroborated by the verdict of the jury.”

The motion is dismissed.

WARDLAW, WITHERS, Whither, G-lover, and Muhro, JJ., concurred. • v

Motion dismissed.  