
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1811.
    Alexander Spence v. John Spence.
    Parol evidence of the existence and contents of a deed, is not admissi. ble, without first proving due diligence to obtain the deed itself, and without first accounting for its non-production.
    Present, Grimke, Waties, Brevard, Smith, and Nott, Jus. tices. Bat, J., absent from the State, by leave of the Legislature.
    Motion for a new trial. Trespass to try titles, tried before Bax, J., in Abbeville district. Plaintiff provéd an original grant, of the land in question, to his father-in-law, Mark, and a conveyance by deed from Mark to himself.
    The defendant was allowed to give evidence of certain declara, tions made by Mark m presence of the plaintiff, that he had sold the land to one Williamson, of Charleston, and had made a conveyance to Williamson of the same, who had paid the consideration money. Also, that Mark had informed the plaintiff before the gale and con. veyance to the plaintiff, that he had sold the land to Williamson. Also, that the plaintiff, expressing a desire still to purchase, not. withstanding this information, Mark consulted one Smith on the subject, who advised him not to do so dishonest an act. It was proved that Williamson had not been heard of for many years.
    
      Note. Parol evidence, to prove that a party said another had a good lease forever of the land in dispute, held to be a dangerous species of evidence. Though good to support a tenancy, or satisfy doubts in cases of possession, it ought not to be received as evidence of title. It would be to counteract the beneficial purposes of the statute of frauds.- 6 Johns. 21, 19, Jackson v. Shearman. Also, 7 Johns. 186, Jackson v. Vosburgh. Such evidence wouldlead to fraud. Itmay be received to rebut evidence of tenancy; but not to disprove title of landlord.
    On the part of the defendant, was offered other evidence of de. claratiops made by Mark, that he had sold and conveyed the land to Williamson, prior to the time of selling and conveying to the plaintiff. But this evidence being objected to, it was not suffered to go to the jury, without first adducing evidence to prove the ex. istence of a deed of conveyance from Mark to Williamson, and to account for its non.production. No such evidence being offered, a verdict was taken for the plaintiff.
    To set aside this verdict, and obtain a new trial, Bowie, and Cal. houn, argued, that the evidence was admissible to prove fraud in obtaining the plaintiff’s title ; and that it was not .necessary to give higher evidence of the existence of a prior title in another.
    Yancev, on the contrary,
    contended, that a deed could not be proved by parol evidence, unless its non.production could be clearly accounted for. That, in the present case, the evidence offered was not the best the nature of the case admitted of.
    The argument of counsel turned chiefly on the construction of an act of assembly of 1698, P. L. 3, respecting the registration of deeds of conveyance. On the supposition of a conveyance to Williamson, not recorded, the question debated was, whether the second conveyance to the plaintiff was not good, admitting he had verbal notice of a prior sale, his conveyance being registered, &c. On this point thfe court gave no opinion.
   Per curiam. May 3d, 1811,

Waties, J.,

delivered the opinion of the court. No proof was offered of the existence of a deed to Williamson, according to the rules of law. The title of William, son, if the defendant relied on it, should have been proven by the best evidence the nature of the case admitted of. But this did not appear. No evidence was given, or offered, to prove why the deed to Williamson was not produced, if in fact it ever existed.

New trial refused.  