
    David R. Poighand versus Ebenezer Smith.
    in an action by the assignee of a mortgage to recover possession of the mortgaged premises, against a disseisor, the affidavit of his assignor is not admissible in evidence to prove the loss of the mortgage deed, for the assignor might be a witness in the case.
    fn such an action, if diligent search and inquiry are made for the mortgage deed, by the demandant, and it cannot be found, he may give a copy from the registry in evidence.
    If the mortgage deed appears from the registered copy to be an indenture interchangeably signed and sealed, and the part belonging to the mortgagee is proved to be lost, in order to make the copy admissible, due diligence must be shown to ascertain whether any counterpart exists, and if it does, to obtain it to be used in the trial.
    Where land is mortgaged, a person who by taking possession of it disseises the mortgager, disseises also the mortgagee, and so long as the disseisor is in possession, the deed of the mortgagee will not pass his, the mortgagee’s, interest in the land.
    Where a person, without title, took possession of land which was under mortgage, and built on parts of it a carpenter’s shop and a blacksmith’s shop, and the tenants of the carpenter’s shop occasionally used parts of the lot adjacent to their -«hop, to spread their boards on, and the tenants of the blacksmith’s shop used other parts of the lot to run carriages on, and put tires on wheels, it was held, that this was a disseisin of the mortgagee only for the part of the land covered by the shops.
    This was a writ of entry to recover possession of a piece of land on the old mill-pond in Boston. The demandant counted on his own seisin. The tenant pleaded the general issue, which was joined, and also filed a prayer for an inquiry into the increased value of the land by improvements; and the demandant filed a prayer for an inquiry into the value of the land without the improvements. The writ was dated December 16, 1826.
    At the trial, before Wilde J., the demandant gave in evidence a deed of the demanded premises from the Mill Pond Corporation to John Peck, dated March 30, 1810. He then stated, that the land was on March 31, 1810, mortgaged by Peck to Ruggles Whiting, to secure payment of a note of Peck for 3000 dollars, payable to Whiting in twelve months with interest, that the mortgage deed and note had been lost by Whiting, and that Whiting had assigned the debt and mort gaged land to the demandant by a separate deed dated February 13, 1825. In order to prove the loss of the mortgage and note, the demandant offered the affidavit of Whiting, who died before the trial, dated November 27, 1826. This affidavit was objected, to by the tenant, but admitted by the judge. It appeared from this affidavit, that Whiting, being about to depart to the Western States in 1817, left the note and mort gage, with a large number of other papers, in a trunk or trunks in rooms hired by him in Boston, but that on searching for the mortgage and note on his return, he could not find them. Jacob Gates, a witness for the demandant, then testified that Whiting, in 1817, deposited a large quantity of papers in i trunk or trunks in the rooms, as he stated, and that Whiting, in 1823, examined the papers for the deed or note, and that he himself had also examined the papers for the deed and note, without success. Simeon S. Goodwin of Louisville, Kentucky, deposed that Whiting’s papers in Kentucky had been left in his hands, and that the deed and note were r.ot among them. James Richardson, Whiting’s administrator, testified that he had examined all the papers of Whiting which were known to him, and that the deed and note were not among them. The certificate of the register of deeds for Suffolk, which was admitted by the parties, stated that it did not appear of record that the mortgage was discharged, either on the margin of the record or by deed, and that no assign ment by Whiting or conveyance by Peck, of the land, subsequent to the mortgage, appeared on record, except Whiting’s assignment to the demandant. The judge then permitted the demandant, the tenant objecting, to give in evidence a copy from the registry, of the mortgage deed ; v'hich purported to be an indenture between Whiting and Peck, dated March 31, 1810, mortgaging the land to Whiting, as before stated, and containing a power of sale by the mortgagee on non-payment of the debt. Only one part of the indenture was recorded : and it was proved that one of the witnesses to Peck’s signature was dead, and that the other resided in Kentucky.
    The demandant then produced an assignment of the mort gage and debt to him by Whiting, by deed dated February 13, 1825. It was proved that both of the witnesses to the assignment resided out of the State ; and its execution was proved by the deposition of one of them and proof of the handwriting of Whiting and the other witness. The demandant then offered a deed of Whiting, dated A pril 19, 1825, in which he declared the intent of his former assignment, and corrected certain errors and omissions in the description of the land. The witnesses to this instrument were proved to reside out of the State ; and the judge permitted it to be read to the jury, on proof of their handwriting, the tenant objecting.
    The tenant did not prove any title in himself, but proved that before the assignment to the demandant, that is, in 1821 and 1822, he, the tenant, had erected upon part of the lot, a blacksmith’s shop and a carpenter’s shop, and had ever since been in possession of them, receiving rent; that the tenants of the carpenter’s shop occasionally used parts of the lot adjacent to the shop, to spread their boards upon ; and that the tenants of the blacksmith’s shop used other parts of the lot, to run carriages on, and put tires on wheels. The tenant, upon this evidence, contended, that at the time of the assignment of the mortgage, the mortgagee was disseised, and that the assignment was therefore void. The demandant, on the other hand, contended, that until after an entry by the mortgagee, no such disseisin of him could take place, as to prevent the assignment of the mortgage and debt. The judge inclined to the opinion, that as to that part of the land on which the tenant had erected buildings prior to the assignment, or which was in his sole and exclusive possession, the demandant could not recover, but might as to the residue.
    The tenant then offered evidence to prove, that more than six years before the date of the writ, he had caused dirt to be carted to several parts of the lot, and had paid for the same, and that he had used a part of the lot for floating timber on and landing the same ; and there was evidence on the part of the demandant, that up to 1821 the whole lot was covered by the tide at high water, except the part on W'hich the blacksmith’s shop stood, and that up to October 12, 1821, the shop was occupied by one Roberts, who held the same as tenant of one Spear, Spear having entered on the lot and built the shop on it by mistake, instead of building upon the adjoining lot.
    
      The demandant proved, that in 1819 the tenant, who vvas agent for the Mill Pond Corporation, exhibited a plan of the lot to one Jones, who was treating for the purchase of it of Spear, and that the tenant did not then claim the land , that up to October 12, 1821, when Roberts ceased to be the tenant of Spear and became the tenant of Smith, Smith had never, to the knowledge of Roberts, claimed the land ; and that Smith, at the time that he floated timber on the lot in dispute, used the whole margin of the pond for eight rods for the same purpose.
    The demandant contended, that the mere acts of carting earth upon the lot, and floating timber on it, did not constitute a possession which would entitle the tenant to betterments ; and further, that the jury ought to be instructed, if they found for the tenant, to deduct the rents received by him from the value of the improvements.
    The case was taken from the jury by consent; and if in the opinion of the Court the demandant was entitled to recover the land, or any part of it, the tenant was to be defaulted, and judgment to be entered accordingly ; otherwise a new trial was to be granted. And if the Court should be of opinion, that the tenant could maintain any claim for betterments, then the value of the betterments and the value of the land were to be referred to auditors, if they could be agreed on by the parties, otherwise to be submitted to a jury.
    
      HarchlOth.
    
    
      Shaw and Bartlett, for the demandant,
    contended that there Was sufficient proof of the loss of the indenture, to justify the introduction of the copy from the registry. Tayloe v. Riggs, 1 Peters’s Sup. Ct. R. 591; Davis v. Spooner, 3 Pick. 284; [2d edit. 286, note I ;] Taunton Bank v. Richardson, 5 Pick. 436 ; Turnipseed v. Freeman, 2 M‘Cord, 269.
    Probably not more than one part of the indenture was ever made ; and even if another part were in existence, the demandant could not use it, as it is not recorded, and he cannot compel Peck to put it on record. St. 1783, c. 37, § 4 Pond v. Wetherbee, 4 Pick. 312; Waller v. Horsfall, I Campb. 501. Besides, the demandant cannot be obliged to call on Peck for the counterpart. He is in Kentucky, beyont the process of the Court. Sebree v. Dorr, 9 Wheaton, 563. The demandant, however, was only bound to produce the deed to himself; the office copy of a previous deed not in his possession, is sufficient evidence. 1 Stark. Ev. 368, in notis ; 1 Stark. Ev. 366 ; Doe v. Roe, 1 Johns. Cas. 402 ; Baker v. Preston, Gilmer, 235 ; Turner v. Slip, 1 Wash. 319 ; Carroll v. Llewellin, 1 Harr. & M‘Hen. 164 ; Tebbs v. White, 4 Bibb, 42. Where a witness is dead or out of the State, proof of his handwriting is admissible ; but where a copy is admissible, it cannot be necessary to produce the witnesses to prove the execution, for the handwriting cannot be proved. 1 Stark. Ev. 337, 338. [Eaton v. Campbell, 7 Pick. 10.]
    A mortgagee, before actual entry, cannot be disseised ; his estate under our statute is different from that of a mortgagee in England. Powell on Mortg. by Rand, 157, note A, 166 a, 252; The King v. St. Michael's, 2 Doug. 630; Eaton v. Whiting, 3 Pick. 488; Penniman v. Hollis, 13 Mass. R. 429; Snow v. Stevens, 15 Mass. R. 280; Groton v. Boxborough, 6 Mass. R. 53; Hatch v. Dwight, 17 Mass. R. 299; Willington v. Gale, 7 Mass. R. 139; Anc. Charters, &c. 501; St. 1798, c. 77; Scott v. Scholey, 8 East, 467; Wilder v. Houghton, 1 Pick. 87; Wells v. Prince, 9 Mass. R. 508; Stearns on Real Actions, 242.
    A disseisin cannot take place without some notice to the owner of the estate ; in this case there is no evidence of such notice. Stearns on Real Actions, 5; Pray v. Pierce, 7 Mass R. 381.
    The demandant, at all events, can recover all the land which has not been actually taken possession of by the tenant. Kennebeck Purchase v. Springer, 4 Mass. R. 416; Green v. Liter, 8 Cranch, 250; Brimmer v. The Proprietors of Long Wharf, 5 Pick. 135.
    With regard to betterments, the carting of dirt on the land, and the floating of timber on it, were not acts of ownership. The demandant is entitled to have the rents and profits set off against the betterments. Jones v. Carter, 12 Mass. R. 314.
    
      Jl. Townsend and F. Dexter, for the tenant,
    contended that the mortgagee never having been in actual possession of the land, it was not sufficient for the demandant, his assignee, to produce a copy of the mortgage deed from the registry ; he was bound to produce the original. Willington v. Gale, 7 Mass. R. 138; Portland Bank v. Hall, 13 Mass. R. 207 Blanchard v. Colburn, 16 Mass R. 345; Wellington v. Gale, 13 Mass. R. 483; Smith v. Dyer, ibid. 21. The demandant was bound to produce the best evidence of which the case admitted
    The evidence of the loss of the mortgage was not sufficient. 1 Stark. Ev. 355. .The affidavit of Whiting, who was a competent witness, was inadmissible. But if the evidence of the loss were sufficient, this does not dispense with proof of the execution of the instrument. 1 Stark. Ev. 354. The demandant should have inquired of Peck for the counterpart, which was an original. 2 Bl. Comm. 296; 1 Stark. Ev. 354 ; King v. Castleton, 6 T. R. 236.
    Smith being in possession at the time of the assignment, the mortgagee was disseised and nothing passed by the assignment, and the assignee can maintain no action. Gould v. Newman, 6 Mass. R. 241; Poignand v. Smith, 6 Pick. 172. The disseisin extended to the whole of the lot, for the evidence proves an actual possession and use of the whole lot by Smith and his tenants. Boston JVIill Corporation v. Bulfinch, 6 Mass. R. 229.
    The opinion of the Court was afterward drawn up by
   Parker C. J.

There are several difficult points in this case, which have prevented us from deciding it so soon as we wished.

The first point relates to the proof of the loss of the mortgage deed from Peck to Whiting (which the demandant avers was assigned to him), so that a copy from the registry could be rightly admitted.

It was objected that the evidence to prove the loss was insufficient. The question was to he decided by the judge, in order to determine whether the copy should go in evidence to the jury. Taking the evidence altogether, viz. the affidavit of Ruggles Whiting, and the testimony of Gates, Richardson and Goodwin, the loss was sufficiently proved. But it is objected, that the affidavit of Whiting should not have been received, he being, as it is said, a competent witness, so that he ought to have been examined viva voce upon the stand, or. his deposition should have been taken with the proper notice to the adverse party, or under a commission giving opportunity to cross-examine. We think this objection is sustained. The affidavit of a party on the question of loss of a paper may be admitted, to exclude any presumption that he may have it in his possession, or know where it is, but those w.ho may be admitted as witnesses must testify in the usual form, in order that the advantage of cross-examination may be preserved.

But Whiting’s testimony being out of the case, there is still a question whether there was' not sufficient evidence of the loss. The demandant claims under an assignment by deed, separate and distinct from the mortgage deed, being an independent instrument referring to the mortgage. This assignment was made in February, 1825, several years after the supposed loss of the mortgage deed ; so that this deed could not have been delivered over, but still was capable of being assigned, as the loss of the deed could not destroy Whiting’s title. What remedy then can the plaintiff have, Whiting being now dead, and being dead at the time of the trial ? The mortgage deed, after the assignment, belonged to the demand-ant. It is to him, therefore, we are to look for diligence in searching for it, and if he use due diligence, and it cannot be found, he is entitled to produce the registered copy, which is better evidence than proof of the contents by paroi evidence. He proves that Whiting, in 1823, made search in a trunk of papers which he had left in the custody of a friend, when he went to the western country. He proves that the person with whom Whiting’s papers were so left, carefully searched among the deeds and papers in the trunk committed to his care ; that the administrator of Whiting has searched, and also his agent in Kentucky, with whom he had also left papers ; but neither deed nor note could be found. That there was in fact such a deed, cannot be doubted, for the registered copy is sufficient evidence of this fact. This evidence leaves only the alternative, that the original mortgage deed was lost, or that it had been delivered up to the mortgager on satisfaction of the deb it was given to secure. We think this cannot be presumen against the evidence resulting from the record, which shows no cancelling of the deed, nor any release, one or other of which would appear, if the mortgage had been discharged.

But it appearing by the registered copy of the deed, that the original from which it was copied, was only one part of an indenture, which was interchangeably signed and sealed, a question is made, whether due diligence has been used without the production of the counterpart, or some proof of efforts to produce it. In the case of The King v. Castle-ton, 6 T. R. 236, it was decided, that proof of the loss of one part of an indenture, it appearing that the other part was in the hands of an agent who might be summoned to testify, was not sufficient to authorize the admission of evidence of the contents. The suggestion of the counsel for the demand-ant, that the counterpart, if existing, is in the hands of Peck, and that he is not a competent witness, differs this case from that, but not sufficiently to legalize the secondary evidence, for it may be that Peck, on application, will deliver this counterpart to the demandant, and if he will not and cannot be made a witness, still proof that he has been called upon and has refused, would put the demandant upon better ground than he now stands upon ; for there may be a presumption, in the absence of the counterpart, and of all evidence of any attempt to procure it, that it contains some defeasance or discharge of the contract between the parties. We should not, therefore, feel at liberty to give full effect to the registered copy, without hearing something of the counterpart.

In regard to the deed of assignment from Whiting to the demandant, of February 13, 1825, that was sufficiently proved. And as to the deed of confirmation, it was considered by the judge as not necessary to the demandant’s title ; and 50 it strikes us. If it should be offered again, the proof of execution will be open to objection, as we have not decided that question, and perhaps unexceptionable evidence has been obtained.

In regard to the disseisin set up by the tenant with a view to prevent the operation of the deeds of assignment, we think the decision of the judge was correct, both as to evidence of disseisin, its limitation, and its effect upon so much of the land as was actually covered by the buildings then existing. 
      
       See Southerin v. Mendum. 5 N. Hamp. R. 428; Ward v. Fuller, 15 Pick, 187; Hewes v. Wiswell, 8 Greenleaf, 94.
     
      
       See Hunt v. Hunt, 14 Pick. 385; Alden v. Gilmore, 13 Maine R. (1 Shepley,) 178; Kinsell v. Doggett, 2 Fairfield, 314.
     