
    Edward K. Chaplain, Administrator of William R. Chaplain, vs. Parmenas Briscoe.
    A witness under subpoena duces tecum is compelled to produce all documents in his possession, unless he have a reasonable excuse to the contrary ; of the validity of which excuse the court and not the witness is to judge.
    Where a defendant, in order to introduce a copy of a deed averred to be lost, wás sworn to prove the loss, and stated that he had assigned the deed to one G., and all his interest in the land, but did not state that the deed was lost, or that G. had been subpoenaed, or that any effort had been made to procure the original; held, that no sufficient foundation had been laid for the introduction of the copy, and it was inadmissible.
    
    C. sold P. a tract of land, and covenanted in the deed that if title to part of it failed, he would make a corresponding deduction from the purchase-money, and gave also a covenant of warranty ; held, that in an action to recover the purchase-money, P. could set up a failure of consideration, as to the land to which the title was not perfected.
    C. sold P. a tract of land, and covenanted in the deed that if title to part failed, a deduction should be made from the purchase-money ; P. sold his interest in the land to G.; C. was unable to perfect title to part of the land, and sued P. for the purchase-money, who pleaded failure of consideration ; held, that it was by no means clear that C.’s covenant was a real covenant, and that if it were, it would depend on the terms of the assignment whether it passed to G.
    
      In error from the Claiborne circuit court.
    Edward K. Chaplain, administrator of William R. Chaplain, sued Parmenas Briscoe in the Claiborne circuit court, to its May term, 1842, on two notes, dated February 8, 1832, and due January 1, 1838, in favor of J. B. Conger; one made by Parmenas Briscoe and Thomas Briscoe, for $609, and the other by Thomas Briscoe and Parmenas Briscoe, for $366 66. The defendant pleaded non assumpsit.
    On the trial, the notes were read in evidence by the plaintiff; the defendant then read in evidence a deed, dated February 8, 1832, made by J. B. Conger and wife to Thomas Briscoe, for 320 acres of land, warranting the title generally ; and reciting, that said Thomas Briscoe, in consideration of said land, had given to said Conger his six notes, with P. Briscoe, for $366 66 each, payable January 1, 1833, 1834, 1835, 1836, 1837, and 1838; and also reciting that it was well and perfectly understood by both Conger and Briscoe, that there was a small portion of the land to which Conger had not a complete title, and Conger thereby promised, that if he should still he unable to show a complete title to the whole of said land, at the time when the last payment became due, then he would remit to Briscoe at the rate of $5 per' acre, for such portion of the land as he should be unable at that time to show a complete title to.
    The defendant then offered to read from the record book of deeds of the county a copy of a deed from Conger and wife to defendant. The defendant being examined upon oath, to account for the non-production of the original, testified that he had assigned the deed, and all his interest therein, to one John Grissom, but did not show that it was lost, or that Grissom had been subpcenaed to produce it, or that efforts had been made to procure the original deed. The plaintiff objected to the copy being read, hut the court overruled the objection, and allowed it to go to the jury, to which exceptions were taken.
    This deed recites that Conger sold Parmenas Briscoe 406 acres of land warranting the title, and that Parmenas Bris-coe gave him six notes, with Thomas Briscoe as surety, dated February 8, 1882, for $609 each, due January 1, 1833, 1834, 1835, 1836, 1837, and 1838 ; that there was a small portion of the land to which Conger had not a complete title, and contains an agreement by Conger, in case he should not be able to show a complete title to the whole when the last note fell due, to remit to Briscoe at the rate of $9 per acre, for so much as he should not be able to show a complete title to.
    Defendant also read in evidence a deed from Jesse Hudnell to S. Hudnell, and J. Hudnell, for land in Claiborne county, dated in 1825; this deed is not set out in the record ; and introduced Thomas Hudnell as a witness, who testified that the grantees in said deed were his son and nephew; that the land, conveyed to them by the father of witness, was entered by his father at the land office. The certificate or patent was exhibited at the trial, but is not set out in full in the record. The witness also testified that a portion of each tract, to wit, the one conveyed by Conger to Thomas Briscoe, and the one conveyed to P. Briscoe, was comprised in the tract mentioned in the deed from Jesse Hudnell to witness’son and nephew; this portion he stated to be 80 acres in each. He stated that his father had been in possession of the land for many years, and was in possession at the time of the conveyance to witness’ son and nephew. He stated that he had removed with his family to Lawrence county, shortly after the year 1825, and that neither he nor his family had been in possession of the land since his removal, and that Conger was in possession of the land before and at the time of the sale to the Briscoes.
    John B. Thrasher testified that he transferred the notes sued on to plaintiff’s intestate, and that said intestate, before he took the notes, knew of the deeds from Conger to the Briscoes, and had seen the covenants therein contained.
    The jury found for the defendant; the plaintiff moved for a new trial on two grounds.
    1. That the court received improper evidence.
    2. That the verdict was contrary to law.
    The motion was overruled, a bill of exceptions taken, and the cause is brought up by writ of error.
    
      Eustis, for plaintiff in error.
    The bill of exceptions shows that improper documentary evidence was admitted.
    In the first place, it is clearly shown, by the testimony of the defendant himself, that he had not, at the time of the trial, any interest or title whatever remaining in him, in one of the deeds or covenants which he then set up, in bar of the plaintiff's recovery. He had assigned all his interest in it to a third person. In fact, he borrowed the document for the purposes of the trial, and should the judgment be affirmed, and the precedent established, many other persons may yet find it a serviceable paper in Claiborne county. It seems, too, that the defendant (supposing for the present that he had the permission of the owner to use it at all,) did not insist upon a loan of the original. He is permitted by the court, because he showed by his own testimony that he had no rights under the original, (not that it was lost' or destroyed,) to read in evidence and set up rights under a copy.
    It would doubtless be convenient if a person could always retain, after assignment, the benefits to result from the various promises to pay, which necessity may compel him to part with, but that such reservation is consistent with law, is a proposition altogether new to us. The covenant runs with the land. Briscoe has conveyed the land to Grissom. There is Ho doubt in our mind that if Grissom is ever evicted, he may, by suit in the name of Briscoe, recover of Conger, upon the covenant, at the rate of five dollars per acre for the number of acres from which he shall be evicted. Is there anything in the present case to make it a bar to such an action 1 Grissom is no party, nor does he desire any benefit.
    If this judgment is affirmed, this covenant ought to be taken into consideration, in future transfers of the estate, as part of its profits. Each alienee, after he has transferred it, can use it as an offset for a given sum, in all suits that may hereafter be brought against him by Conger or his assigns.
    These covenants are covenants of warranty, with stipulated damages. Such covenants run with the land. 4 Kent, 471. Norman v. Wells, 17 Wend. 145.
    
      W. S. Wilson, on the same side.
    1. The court below admitted as evidence a copy of the deed from Conger to Briscoe, from the record book of deeds. The defendant failed to prove the loss of the deed, for which purpose he was admitted. The only account he gave of it, and the only reason for its absence having been, that he had assigned it to a third person, to whom the application had been made for its use, and whose attendance as a witness there had been no attempt to procure.
    This, it would seem plain, did not suffice, to let in secondary evidence of the contents of the original deed.
    The law now in force respecting the admissibility of recorded deeds as evidence, may be found at page 348 of How. & Hutch. Its provision is, that the copy may be given in evidence, when the original is “ lost or mislaid.”
    The law of 1837, How. & Hutch. 610, made copies of deeds, properly recorded, evidence, without accounting for the absence of. the original. This was repealed by the act of 1840, and thereby the original law was revived.
    The defendant should have shown that the original deed was either lost or mislaid. He did neither, but traced it distinctly to the hands of his own assignee, from whom he made no attempt to procure it. It is evident the statute contemplates that a copy shall be used, only where the original cannot be had, and is, as respects the proof, required to prepare the way for the admission of secondary evidence, thereby declaratory of the common law.
    It would be superfluous to cite authorities upon a point so familiar.
    2. It is contended that Briscoe could not use the deed for the purpose of setting off damages for a breach of covenant, because he had assigned all property in the deed, as was shown by his own admission, to a third person.
    
      It is conceived by us to be immaterial, whether the covenant be or be not one that will run with the land ; the party having assigned it being, in this case, precluded from using, by way of set-off, its breach. That the covenant, however, was one that run with the land, appears, we think, from these considerations. It was between vendor and vendee, and there was the requisite privity.
    The covenant was not collateral, but to do a thing directly affecting the value of the land.
    If this covenant did not run with the land, how can a covenant of warranty 1 The difference between them only is, that the covenant of warranty is broken by eviction by superior title, and the question of damages is left at large, to be determined as to the amount by the jury, whereas here the covenant was broken by inability to show title on the day fixed, and the amount per acre to be paid, on failure of title, is ascertained by its own terms. See as to what covenants run with the land, Norman v. Wills, 17 Wend. 137.
    Judge Cowen, in case cited, p. 150, asks, Why do charters and covenants for assurance and warranty run with the land ? He answers, Because they make part of its value. This covenant must be understood as having added value to the land in the hands of the vendee ; for it is that the purchase-money should be restored for such of the land to which the title should prove defective.
    3.' A new trial should be granted, because the covenants of the deeds, and the promises to pay the purchase-money were independent.
    The settled rule is understood to be this, that when money is to be paid in consideration of some act to be done, and payment is to be made before performance of the act, an action may be maintained for the money before performance of the act. So where the money is payable by instalments, as in this case. Gibson v. Newman, 1 How. 341, 349. Terry v. Duntze, 2 H. Black. 389. 15 Mass. R. 471, 474. 5 Cow. 509.
    The covenants in this case were, that the vendor would restore at the rate of $9 per acre, for such of the land to which the title should be defective. If Briscoe should succeed in setting off the breach of covenant, yet if his claim against Conger for the portion to which title is defective at $9 an acre, should exceed the amount of the note, he would he obliged to resort to the action upon the covenant, to recover that excess. But that he has already paid. Has not Briscoe, then, by paying his money for land, which he might he obliged to resort to an action’ upon the covenant to recover as paid wrongfully, shown an intention to pay his money at all events, and to rely upon his covenants alone ?
    Besides the contract upon the part of Conger has been executed. It was to give so much money for so much land. He has executed his deed and parted with the possession — certainly with the right of possession ; the covenants only go to a part of the consideration. Where such is the case the rule is, that defendant must resort to his remedy upon the covenant, for its breach, and cannot plead it as a condition precedent. See 1 Saunders, (by Williams) 319, and notes. Also 15 Mass. 476, note. That failure of title does not afford defence, under circumstances of this case, see numerous cases on the subject, in 4 and 5 How.
    The word remit, in the sense in which it is used in the law, means restore ; thus Blackstone speaks of one being remitted to his ancient rights. But if the court should constitute it to mean “ release,” then we say that the covenant was not a release, but a mere agreement by Conger that he would release. It may be said, regarded in this light, that it must, like a covenant not to sue, he construed to be a release. If the suit were brought by Conger the reason might apply, viz., to avoid circuity of action.
    It is plain that the reason sometimes given for admitting de-fences, that it will avoid circuity of action, can only apply as between the parties. Here the notes have been transferred to a third person, a stranger to the covenant, by whom the suit is brought. On last point, see Chitty on Contracts, last edition, title Release.
    
      
      H. T. Ellett, for defendant in error.
    Two points are relied on for the reversal of this judgment.
    I. That the court below permitted the defendant to read in evidence the record of a deed from Conger and wife to defendant.
    To account for the non-production of the original, the defendant was examined as a witness, and stated that he had assigned the deed to John Grissom, but did not show that he had subpoenaed Grissom to produce it.
    The statute, How. & Hutch. 348, sec. 21, makes the record evidence, where the original has been “ lost or mislaid, or destroyed by time or accident, and not in the power of the party to produce it.”
    
    In this case the deed had been transferred to Grissom, the purchaser of the land. It constituted one of his muniments of title, and he could not have been compelled to produce it by a subpoena duces tecum.
    
    No man will be compelled to produce his title deeds. 1 Stark. Ev. 87. Cow. & Hill’s Notes to Phil. Ev. vol. 4, 1172-1177. Pickering v. Noyes, 1 Barn. & C. 262. (8 Eng. Com. L. R. 72.) Rex v. Hunter, 14 lb. 469. Ditcher v. Kenrick, 11 lb. 356. 16 lb. 416. 17 lb. 380, per Tenterden, C. J.
    If Grissom could not be compelled to produce this deed, the court will not compel the party to do so vain a thing, as to go through the idle ceremony of a subpoena duces tecum. The act cited from How. & Hutch, evidently is intended to apply to cases where the parly offering the copy is the person entitled to the possession of the original. The admissibility of the deed in this case, depends upon the principles of the common law, referred to in the above cases.
    The act of February 24,1844, (Pamphlet, 230,) revives the first section of the act of May 13, 1837, and makes the record of deed good evidence. On another trial of this cause, the copy of the deed would be good evidence, without accounting in any manner for the non-production of the original.
    2. The second point involves the sufficiency of the defence set up by the defendant against the payment of the notes.
    
      There are two notes sued on, given for different parts of the same tract of land ; one of which parts was sold to Thomas Briscoe, and the other to the defendant, the defendant being principal debtor on one note, and surety on the other. Both deeds contain the same stipulation ; they recite that it was distinctly understood by both parties, that there was a portion of the land to which Conger had not got a complete title, and Conger promises that if he should not be able to show a complete title to the whole of'said land, at the time when the last payment became due, that then he would remit to Briscoe, in the one case at the rate of $5 and the other $>9 per acre, for such portion as he should be unable at that time to show a complete title to.
    The evidence shows that 80 acres of the land embraced in each deed belonged to Hudnell, and no proof was attempted, to show that Conger had acquired any title to it. The quantity of land to which the title was thus defective, amounted, at the rate stipulated for, to enough to extinguish both notes, they being given for the last payment.
    According to the plain meaning of the covenant, Conger is bound to show a complete title to the land, as a condition precedent to the payment of the notes. The promise to remit is a mere acknowledgment, that unless he procures title to the land, he will have no right to recover the amount agreed to be remitted.
    To call this agreement a real covenant, one that runs with the land, is an abuse of terms. It is not a covenant of warranty, and lacks every qualit}r of a real covenant. Try it by the test proposed by the plaintiff’s counsel, and the absurdity of their proposition is fully manifested. It adds no value to the land in the hands of Briscoe’s vendee, and in no event could Grissom maintain an action on it, or derive any advantage from it.
    A sale of the land, or an assignment of the deed, could not transfer this agreement, for it is a mere personal contract between Conger and the Briscoes, which could not be assigned, and of which no other persons could avail themselves.
    
      It is not attempted to set off unliquidated damages in an action of assumpsit, but merely to take advantage of a condition precedent, without the performance of which by Conger, the money is not recoverable.
    If it is regarded in the light of a set-off, still the damages are liquidated by agreement of the parties, and are a proper subject of set-off.
    The fact that the compensation for the land to which the title is defective, is to be made at the maturity of the last notes, shows that it was the intention that the deduction should apply to these notes. The fact that the quantity of land so situated was not precisely known, may account for the amount to be remitted exceeding the amount of the notes.
    If the agreement is regarded in the light of a covenant not to sue, it is a release, and may be taken advantage of as such.
    That the suit is brought by Conger’s assignee makes no difference, for he took the notes subject to all defences existing between the original parties. How. & Hutch. 373, sec. 12.
    But in tfyis case the proof shows, that before Mr. Chaplain took the notes, he had actual notice of the defence that existed against them, having seen the deeds and read the covenants.
    
      
       Since the trial at law of this case, the legislature have revised the act of 1837, to be found in the Laws of Mississippi, (1824 —1838) p. 760, entitled, “ Jin act declaring certain copies competent testimony and for other purposes. The first and second sections of this act were repealed in the year 1840 (Sheet Acts, 1840, p. 79, chap. 40) ; but in 1844 (Sheet Acts, 1844, p. 230, chap. 58,) the first section of the act of 1837 was revived. That first section alters the law, as stated in the text, and is in these words, viz.:
      “ Section I. Be it it enacted by the Legislature of the State of Mississippi, That copies of all recorded deeds, conveyances, bonds, and other instruments of writing, which are void, or may hereafter by the laws of this state be required or permitted to be recorded, shall, when certified by the clerk in whose office the record of the same is kept, be received in evidence in any court of law or equity in this state, and be available, without accounting for the absence of the original, if the original deed, conveyance, bond, or other written instrument were there and then produced and proved.”
      The text is therefore not applicable to the law, as it now stands by legislative enactment. This decision (Chaplain v. Briscoe,) had no reference to the existing statute, but refers to that in How. & Hutch. Dig. 348, sec. 21, which was passed in 1822, and revived by the repeal of the law of 1837, above copied.
    
   Chief Justice Shaekey

delivered the opinion of the court.

The defendant was sued on two promissory notes, and set up as a defence that the notes were given for land, to a portion of which the vendor had no title. By a copy of the deed introduced, it appears to have been understood that there was a defect in the title to a small quantity of the land, and the vendor agreed and bound himself, that in case he should fail to perfect the title, by the time the last payment became due, he would make a reduction from the price at the rate of a stipulated sum per acre for such deficiency; and evidence was also introduced to prove that the title had not been perfected, but was in another person. A copy taken from the record book was introduced instead of the original deed, and the defendant was sworn to prove that the original was lost or mislaid. He stated that he had assigned the deed to one Grissom, and all his interest in the land, but did not-state that the deed had been lost, or that Grissom had been subpoenaed, or that any effort had been made to procure the original. The plaintiff objected to the introduction of the copy, under these circumstances, but the court allowed it to be read. This is assigned for error. On the other hand it is said it was not error, because it was Gris-som’s title paper, and that a party is not compelled, on subpcena duces tecum, to produce his title papers.

By the writ of subpcena duces tecum, the witness is compelled to produce all documents in possession, unless he have a reasonable excuse to the contrary, of the validity of which excuse the court, and not the witness, is to judge. 3 Stark, on Ev. 1721. It seems that a witness is not compellable to produce title deeds, where the production would prejudice his civil rights. Ib. 1722. But it is the duty of the witness to obey the subpoena, and bring the document with him ; and it is a question of law for the court whether, upon principles of justice and equity, the production of the instrument ought to be enforced. Ib. 1724. 2 Phil. on Ev. 12, note 5. Cowen’s Notes. On this principle, Grissom was bound to obey the subpoena, and after inspection of the paper it was for the court to say, whether it should go in evidence. There is no rule of law which authorizes parties to judge for themselves in advance, whether a document is introducible or not. It was proper that the deed should have been produced, and also the assignment, for it is possible that by the assignment the defence might have been defeated. Their admissibility, when produced, was a question for the court; the statute which makes copies of deeds admissible in evidence, does so only on condition that the original be lost or mislaid, or destroyed by time or accident, and that it is consequently not within the power of the party to produce it.

Another point is made, that it is not competent for the defendant to set up this defence, because he has a warranty, and must resort to that, and cannot set off the damages for a breach of Avarranty against the plaintiff’s demand. No off-set is attempted. It is but a failure of consideration : and the defendant’s right to set it up results from a stipulation in the deed, that Conger, the grantor, would make the deduction, in case he failed to perfect the title when the last payment became due. Whether the defendant has waived any right to make this defence by his contract with Grissom, does not appear. It is said that Conger’s covenant was real, and consequently passed to Grissom. It is certainly by no means clear that it is a real covenant, but if it be so, it would depend upon the terms of the assignment whether it passed to Grissom.

Judgment reversed and case remanded.  