
    John Vandergriff v. T. E. Piercy.
    (Case No. 4490.)
    1. Lost deed — Copies.— A certified copy of a lost deed is, when the statute is complied with, original evidence of the contents of the original (R. S., art. 2257).
    2. Lost deed.— When it is sought by parol evidence to show the former existence, contents and loss of a deed, notice to produce, when necessary, must be given, and inquiry and search from proper persons and in proper places must be shown. When practicable, its loss should be shown by the one who was charged with its custody at the time of loss; if he be dead, application and search should be made to his representatives and among his papers. Thu last custodian should be produced or his absence satisfactorily accounted for, anc" his mere declarations are not admissible. Crayton v. Munger, 9 Tex., 285; Hooper v. Hall, 30 Tex., 154; Butler v. Dunagan, 19 Tex., 559, and other cases cited, followed.
    Appeal from, Parker. Tried below before the Hon. A. J. Hood.
    F. A. Piercy, a lady who brought this suit in order to get in the 'testimony of the contents of deeds alleged to be lost, made an affidavit that they were in existence and had been recorded, but they and the records were destroyed by fire in the court-house when it was burned; that she had tried diligently to find them, and could not, “ therefore she says they are destroyed or lost.” She stated no diligence in search for the lost deeds, and the clerk when the fire occurred was not produced, or his absence accounted for.
    
      E. P. Nicholson, for appellant.
    
      B. G. Bidwell, for appellee.
   West, Associate Justice. —

Where it is proposed to prove the existence and'contents of a lost deed under the rule of evidence, as declared in our statute, certified copies constitute original evidence, if the requirements of the law are complied with. R. S., art. 2257.

In this case, where it is proposed to prove by parol evidence the existence, loss and contents of certain original deeds outside of the statute, the rules of evidence at common law and in equity govern, and they must be complied with. R. S., art. 2245.

There must be shown, in cases where it is necessary, that there has been a notice to produce given. It must also be shown that there has been diligent search and inquiry made of the proper-person, and in the proper places, for the lost deed. The loss of it must be proved, if possible, by the person in whose custody it was at the time of the loss, if such person be living, and if dead, application should be made to his representatives, and search made among the documents of the deceased. The declarations merely as to loss, of the person in whose custody it was at the time, will not do; such custodian must be produced or his absence satisfactorily accounted for. There should be evidence, in cases like the present, of some one who was in such a relation to the lost deeds as to be able to swear that they were in the county clerk’s office when that office was burned, and were there burned. The affidavit of the clerk or deputy, or of the parties who had been or were entitled to be custodians of the deeds, should be taken, or the absence of such evidence satisfactorily explained and accounted for. Hooper v. Hall, 30 Tex., 154; Butler v. Dunagan, 19 Tex., 559; Crayton v. Munger, 9 Tex., 285; Bateman v. Bateman, 16 Tex., 544; Dunn v. Choate, 4 Tex., 14. The affidavit in this case did not lay a sufficient predicate for the introduction of secondary evidence, and such proof should have been excluded.

The other questions presented by the record need not be noticed, as it is likely that different and fuller evidence will be introduced by both parties on the next trial; in which event, these questions may not again arise.

The judgment is reversed and the cause remanded.

Reversed and rejianded.

[Opinion delivered Hay 1,1883.]  