
    Dennis O’Neal and Wife vs. Henry Isbell.
    Where a conveyance of land was to two persons, one of whom was dead, and the other, though he had been absent from the State — no one knew where — for many years, was known to be living, at and before the trial, in an adjoining district: — Meld, that proof that the deed could not be found among the papers of the deceased grantee was insufficient evidence o'f the loss, so as to let in an office copy as evidence.
    Where a party intends to offer in evidence an office copy of a deed under the Act of 1843, the thirty days’ notice required by the Act must be in writing.
    BEFORE GLOYER, J„ AT FAIRFIELD, SPRING TERM, 1856.
    The report of his Honor, the presiding Judge, is as follows:
    “ The action was trespass to try the title to a tract of land, containing four thousand four hundred and fifty acres, granted to Quinton Craig on the 4th of Juné, 1792. The grantee died intestate in 1833 or 1834, leaving a widow and seven children, to wit.: James, Minor, Robert, Joseph, Sarah, who married Sawyer, Mary, who married Brown, and Cinthia, who married the plaintiff, Dennis O’Neal. The widow died intestate in 1842 or 1843. Robert and Joseph are dead, leaving children, and Minor died in 1852, intestate and without issue. Sarah moved to the West with. children, and has not been heard of for more than fifteen years.
    “ The plaintiffs have commenced this action to recover the distributive share of Cinthia as an heir at law. The defendant claims one hundred and seven acres, within this grant, and on which a trespass was proved, under- a deed- from Minor- Craig, dated the 15th August, 1851; and to connect Minor Craig, as a purchaser, with the grantee, Quinton Craig, he offered in evidence a copy deed from the said Quinton Craig to Minor and James Craig, for the whole tract of four thousand four hundred and fifty acres. The only evidence offered to prove the existence and loss of this deed was an attested copy from the Register’s office, and that Jeremiah Park, the administrator of Minor Craig, found no such original deed among his intestate’s papers. It was .also’ proved that one or two houses occupied by Minor Craig was burnt two or three years before his death. The copy from the Register’s office was n'ot admitted, because there was not such proof of the loss of the original, as authorized the introduction of an office copy.
    “ The defendant then offered the copy of the deed in evidence under the provisions of the Act of 1843, to which the plaintiffs objected,'on the ground, that the notice required by the Act had not been given. An offer to introduce this copy in evidence at the last term was resisted for the same reason, and it was insisted that that offer was sufficient notice, under the Act, for this Term. The presiding Judge was of a different opinion» and refused to admit the copy.
    “ The third and fourth grounds of appeal depend on the character of Minor Craig’s possession.' Minor and James Craig went on this land in 1818, and were concerned in merchandize. Minor left for a short time, and returned in 1822, and in two or three years James left. In the mean time, in 1830, Quinton Craig, the grantee, removed on it, and continued there till his death in 1833 or 1834, and after his death his widow remained on it until her death in 1842. James returned and finally left it in 1843, and now lives in Richland District. The plaintiff Cinthia lived there until her marriage, about 1841, and for two years after. Robert died there before the grantee, and left a widow and children, who moved to the West. Joseph also moved to the West about 1836. After Cinthia married, Minor continued to live on the land for about twelve years. One witness said, they li'ved together as a family. In 1822, or 1823, Quinton Craig said he had let his sons, James and Minor, have his land, and afterwards he said he had given three hundred acres to Robert, and that he intended to give his lands to his boys. Jeremiah Park stated, that Minor Craig exercised acts of ownership, such as selling and renting parts of this tract. I instructed the jury, that if Minor Craig had possession, claiming the land adversely — as his own — for twenty years, they were authorized to presume the existence of a deed; and that if such adverse possession continued for ten years, it conferred a title under the statute, and they should find for the defendant.
    “I did hold, that one tenant in common could not maintain an action to try titles against his co-tenant, or against one who entered and held under a co-tenant; but the defendant did not claim as or through a co-tenant. The defence insisted upon was, that Minor Craig held possession absolutely, and claimed as his own, which was sufficient evidence of an ouster, and inconsistent with the allegation that he held, jointly or in common with others.
    “ The verdict was for the plaintiffs and thirteen dollars damages.”
    The defendant appealed, and now moved this Court for a new trial, on the grounds :
    1. That an office copy of the deed of Quinton Craig to his sons, James Craig and Minor Craig, conveying the lands claimed by the plaintiffs, ought to have been received in evidence by the Court, the loss of the original having been sufficiently proved to admit the office copy.
    
      2. That there was sufficient evidence of notice having been given to the plaintiffs at the Fall Term of 1855, and in open Court, that an office copy of said deed would be offered in evidence on the trial of this case to entitle the defendant to offer an office copy under the Act of 1843.
    3. That the possession of Minor Craig, under whom the defendant claims from 1820 until his death in 1852, under a. deed or gift from his father; coupled with acts of exclusive ownership, such as, selling parts of the lands in dispute, and renting out other parts; authorized the Court to instruct the ■ jury to presume a grant or a deed to Minor Craig.
    4. That all rights of the grantee, Quinton Craig, under his grant, were barred and defeated by the continuous and adverse possession of Minor Craig for more than, ten years, under a deed'or gift from, his father, Quinton Craig.
    5. That the plaintiffs claimed as co-tenants with Minor Craig, and the Court ought to have instructed the jury that one co-tenant cannot maintain an action to try title -against another co-tenant or one who holds under a co-tenant.
    6. That the verdict of the jury was contrary to law and evidence.
    Buchanan, for appellant.
    Baushet, contra.
   The opinion of the Court was delivered by

Withers, J.

The first question is, w;hether there was error in excluding an office copy of a deed of conveyance, purporting to have been made by Quinton Craig to Minor and James, his sons. James was alive,- and though absent for many years, no one knew where, he was, at and before the trial, in this State, resident in Richland District, and (it is said) was in the Court-house at the trial; but, perhaps, this latter fact is not properly in the case. He was not examined as to the loss of the original deed, nor was any inquiry made touching his possession or disposition of it. The answer to this is, that the defendant did not' know where James Craig was; that he had been absent long enough to raise the presumption of his death; and that he had no right to be alive, so far as the knowledge and conduct of the defendant are concerned.

It will not do to push the presumption of one’s death to such extent as this. It is undoubtedly a presumption that may be rebutted — one that has been effectually rebutted, in this instance — and the evidence rebutting it, must be held to be as open to the knowledge of the defendant as to the plaintiffs. If Minor Craig had been sole grantee, we shall not say that the evidence of loss was not' sufficient. But James was as much entitled to the custody of the conveyance as the other, and for aught we can know, could have given as full and accurate account of it as the other, or may have been able to produce it. In consideration, that no information was adduced from him, we think all the evidence, that the circumstances of the case reasonably warranted, was not produced to show the loss; and, consequently, that the exclusion of the copy-deed, tendered in evidence, was proper. There is nothing in Turnipseed vs. Hawkins, 1 McC. 272, in conflict with this position. One, of several executors, in that case, had made “ diligent search” for the paper in question. This was held sufficient, though it did not appear that the other executors were examined or had searched for the paper. He could not have made" diligent search, unless he examined the papers of the testator, and if he had done that, it was of little consequence how many executors there were; for an examination by all would have been but a repetition of the same act, and would have afforded no new source of light, though the search might have been more severe. Whatever might be thought of the true import of the Act of 1731, as to office copies of deeds duly proved and recorded in the proper office, if the matter were of first impression, and notwithstanding the expression of individual opinion by the organ of the Court in Turnipseed vs. Hawkins, it is too late to question, that while the due probate and record of a conveyance of land imports that it existed, evidence, reasonable under the circumstances, that the original has been lost, is required by the course of our decision. Nor will it do to say, that such evidence of loss as may be inconvenient for a party to produce, shall not be demanded; for in Floyd vs. Mintsey, 5 Rich. 371, it was required that the legal representatives of a grantee, who died in Alabama, should be examined as to the existence of the conveyance. It is true, however, that the conveyance then in question had not been put upon record. But a witness to the original was examined as a witness to the cause, and offered to state the contents.

The second question is, whether the copy-deed was admissible in evidence under the Act of 1843. For that purpose, thirty days’ notice is required. That was not given in this case, unless the unsuccessful effort to introduce a copy of the samé at the term of the Court next preceding should be regarded as notice equivalent to that required. We cannot so regard that transaction. It does not follow that what was attempted at the Court preceding will be done at another following. The scheme of defence, or of attack, may be recast for aught that can be known to the opposing party. It is well settled, that the Court will notice no alleged agreement or admission of counsel, resting in parol and disputed. It is of grave importance, that in matters of notice, as a condition for the admission of evidence, secondary in its nature, such notice should be certain, precise, and not open to denial or cavil. We think we usurp nothing of the legislative function, and shall promote the object of the Legislature, as well as good order and harmony among the profession, by declaring, that the “notice” required by the Act of 1843, is a notice in writing.

As to the questions arising upon evidence of the acts of Minor Craig, tending to import adverse possession, such as would authorize the presumption of. a grant, or as would invest him with the title under the Act of 1824, there is no room to question the instruction given to the jury upon those points — and an examination of the evidence quite satisfies this Court, that the jury could alone respond to the questions thus arising; that they alone could say, whether Minor Craig ever held adversely — if so, when such occupation began — -whether it ended when Quinton, the father, went on. the locus in quo, in 1827-8, or ’30 — and it is manifest, there is ground enough of dispute upon this matter to make it clearly proper for this Court to leave the conclusion undisturbed.

The same remarks may be applied to the question arising from the matter of co-tenancy. The rule of law laid down as to this, is unobjectionable, and the facts were exclusively for the jury.

The question raised as to the form of the verdict, does not appear in the grounds of appeal. It is, therefore, grafted upon the last and sweeping one — which had as well carry all the other questions made in the case. Certainly specific points should be made in grounds of appeal; how else shall the Judge on Circuit make an intelligible report, or this Court entertain an adequate conception of what it is to consider and decide ? We are disposed to attribute little virtue to an appeal resting on a general complaint, that the “verdict was against law and evidence.” Accordingly, there is nothing in the report as to the form of the verdict; and from what we hear of it in statements at the bar, there seems to be no well founded exception to it.

The motion is dismissed.

O’Neall, Wardlaw, Whitner, G-loyer and Munro, JJ., concurred. •

Motion dismissed.  