RUFFIN, C. J.

This bill was filed 29 September, 1831, and states that in December, 1796, two grants were issued by this State to John Willis, late of Warren County, each for 2,500 acres of land, situate in the western district, now (253) the State of Tennessee, on the fork of Deer River, and described by metes and bounds in the bill; and that Willis for a valuable consideration sold both of the tracts to William Falkener the elder, late of Warrenton, and as the plaintiffs believe executed a regular conveyance therefor; that, never having seen the deed nor any copy thereof, the plaintiffs are unable to state what was the amount of the consideration, but that at the date of the conveyance, which they believe to be in 1798, Willis was indebted to said Falkener by bonds and on accounts in a large sum, amounting to upwards of $2,500, and that no part thereof has been discharged except by a conveyance of said lands, and that Willis had no other means of satisfying the debt; and that Willis made and Falkener received the conveyance aforesaid in satisfaction and discharge of his debt. The bill then further states that William Falkener the elder, on 20 October, 1798, conveyed the said two tracts of land to his son William A. K. Falkener, in trust for the satisfaction of certain of his creditors, and also, by another deed of the same date, subject to the last-mentioned conveyance, did convey both of the said tracts to William, the son, and his heirs; which two conveyances the plaintiffs charge were made with the knowledge, consent and approbation of Willis, who attested the same as one of the subscribing witnesses thereto. The bill further states that some time in that year, 1798, William, the son, transmitted to the house of Smith Rodman, composed of Willet Smith and Thomas Rodman, of Philadelphia, who were among the creditors of William, the father, and named in the trust deed, the said original grants, together with the conveyance of the said Willis, the deeds from William, his father, to himself and a power of attorney from William, the son, authorizing Smith Rodman to sell the said two tracts of land in order to assure them and the other creditors in the deed of trust mentioned of the payment of their demands against the father; that no sale was ever made because William, the son, paid all those demands, and that after having done so he required the restitution of the papers; and that in 1812, in pursuance of said requisition, all were returned except the deed of John Willis and the power (254) of attorney from William, the son, but instead of those was sent a certificate of Willet Smith, one of the firm of Smith Rodman, made before a notary public and setting forth and declaring that the deed from John Willis to William Falkener and the said power of attorney had been lost. The bill then charges that there can be no doubt but that Willis did make the conveyance as stated, for that since 1798 he, Willis, never pretended but always disclaimed any interest in said lands, and in fact, in 1802, being utterly insolvent, took the oath of insolvency and was duly discharged from imprisonment as an insolvent. The bill further states that, as the plaintiffs suppose, the deed was registered in Warren County, where it was made and the parties resided, but that they have been unable to find the same either there or in Tennessee; and they aver that the book of the register of Warren containing the deeds registered between 1797 and 1802 has been destroyed by fire; and therefore the bill charges that both the deed and the registration thereof have been lost so that neither can be produced. The bill then states the death of William Falkener, the son, in March, 1819, intestate, leaving the plaintiff, W. Falkener, and Sarah his two infant children and heirs-at-law; that Sarah while an infant intermarried with the other plaintiff, Henry L. Plummer, and the plaintiff William was still an infant at the filing of the bill; and that in the latter part of the year 1819 old Mr. Falkener, the grandfather of the plaintiffs Sarah and William, also died; and that in 1806 John Willis died insolvent and intestate, leaving an only child, Elizabeth, now the wife of Geo. D. Baskerville, who are the defendants in this suit. The bill further states that Baskerville and wife have taken possession of the two tracts of land, claiming them as having descended from Willis to his said daughter; and that for want of legal evidence of the conveyance from John Willis to the eldest Mr. Falkener the plaintiffs are unable to bring an action at law to recover the land. Whereupon the bill (after many minute interrogatories upon the matters charged in it as to the knowledge, information or belief of the defendants respectively) proceeds to pray that the (255) defendants should be decreed to surrender to the plaintiffs the possession of the lands, to execute to them a new conveyance in fee simple therefor, and to account for the profits.

The defendants put in an answer of which the material facts are as follows: The defendants admit the deaths of William Falkener, the father, and of William, the son, at the times stated in the bill, and that the plaintiffs William and Sarah are the children and heirs of the latter, and of the ages stated in the bill. They also admit the insolvency of John Willis; that he took the oath of insolvency and died intestate, as charged in the bill, and the defendant Elizabeth is his only child and heir and the wife of the other defendant; and they admit that the grants issued to John Willis as charged. The answer then sets forth that the defendants do not admit nor do they believe that John Willis ever did sell the lands to William Falkener; nor do they admit or believe that Willis was indebted to said Falkener in any manner; that the defendants have no personal knowledge upon these subjects, and had not heard of the grants until after the death of William, the son, their existence and his possession of them became known by their being found among his papers; and that their information touching these matters was derived principally from the late Governor James Turner, who died before the filing of this bill, and who was well acquainted with the Messrs. Falkeners and John Willis, resided for many years in the same village with them, and had every opportunity of acquiring a knowledge of their dealings, and married the widow of Willis and mother of Mrs. Baskerville. By him, shortly after the death of William A. K. Falkener, the defendants were informed that it was his (Governor Turner's) belief, founded on his personal knowledge of the dealings of Willis and William Falkener, the elder, that the former was not indebted to the latter, and if said Falkener did receive the grants from Willis it was not upon a sale to him but for the purpose of raising money by a sale in Philadelphia, where Falkener was well known and Willis was an entire stranger, in order to carry on the operations of a gaming table called A. B., with which Willis was in the habit of traveling about, for the benefit of himself and Falkener. The answer avers the belief of the defendants (256) in the correctness of the foregoing information. The defendants further say that they have no knowledge of the genuineness of the deeds from Falkener, the father, to his son; that the defendant George had seen one of them, which purported to be attested by John Willis, but whether in his proper handwriting he is altogether ignorant as he never saw said Willis and has no knowledge of his writing; and they do not therefore admit that the deeds were attested by Willis, or if they were that he was apprised of their contents, or that either of them includes the lands described in the grants. The answer further states that the lands lie in what is called the western district of Tennessee, to which the Indian title was extinguished a year or two before the death of William Falkener, the son, and that the price of lands in that part of the country, though before very low, became suddenly high and the lands much in demand; and that about that time John C. McLemore, of Tennessee, a well known dealer in lands in the western district came to Warrenton to endeavor to purchase lands of that description, and inquired of said Falkener and of others in his presence in regard to the owner of the lands granted to said Willis, but the said Falkener made no reply and did not intimate any claim to them. The answer further states that the register's books of Warren County from 1799 to 1803 were burnt, and not those from 1797. And the defendants say that they were informed by Mrs. Turner that she repeatedly understood from her first husband, the said Willis, in his lifetime, that he intended to convey his western lands to his daughter Elizabeth; that the defendants have no knowledge that he did make such a conveyance, but that if he did it might have been and probably was registered in the book that was burnt; and that, as the same must have been made some years before he took the oath of insolvency, the said Willis was enabled thereby with a clear conscience to relieve himself from confinement.

There was replication to the answer, and the parties proceeded to take proofs. As exhibits the plaintiffs deposited the grants to Willis and also the deeds from old Mr. Falkener to his son mentioned in the pleadings. Those deeds bear (257) date 28 October, 1798, and purport to be witnessed by Thomas Gloster and John Willis, and were proved and registered in May, 1819, upon evidence of the handwriting of the subscribing witnesses, both of whom were then dead. The first of those deeds assigns and conveys twenty-two slave belonging to William, the father, his remaining stock in trade, dwelling-house and lot, all his cattle, horses and other stock, nine lots in Warrenton, all his household and kitchen furniture and plantation utensils and bonds, book debts and other dues, and "likewise two tracts of land unto me belonging which are lying or situate in Cumberland or Davidson in the western territory, the particulars whereof I cannot describe, not having the plats now in my possession, together with every other kind of property, if any I have, not here enumerated"; upon trust to pay thereout certain debts due from William, the assignor, to Smith Rodman, of Philadelphia, and other creditors mentioned to the amount of about $10,000. The second of those deeds, after reciting the former, conveys the same property described in a schedule annexed to the son for his own use and benefit, after satisfying the trusts in the previous deed declared; and in the schedule the Tennessee land is mentioned thus, "likewise two tracts of land lying or situate in Cumberland or Davidson, in the western territory." And William, the son and assignee, thereby covenants that he will pay the debts owing at that time by his father "as well in conformity to the said deed of trust as to an original assignment bearing date 5 August, 1797."

By the deposition of James Somerville, taken by the plaintiffs, it appears that the witness was very intimate with the younger Falkener for nine or ten years preceding his death, but had no recollection of having heard him talk much about his business, though he once heard him say he had valuable lands in the west if he could get them. This witness took administration of the estate of W. Falkener, the son, at May court, 1819, and states that in examining his intestate's papers he found among them the grants and deeds above mentioned, or they were delivered to him by the elder Falkener as belonging to his deceased son, and that he immediately made it publicly (258) known that the grants were in his possession in order that it might be ascertained whether the lands belonged to the heirs of Willis or the heirs of his intestate Falkener. This witness further states that he found among his intestate's papers the letter and documents hereafter mentioned, which he identifies, of which the genuineness is established by many other witnesses so far as respects the handwriting of the persons whose productions they purport to be. These documents are, first, a letter written from Philadelphia on 16 May, 1797, to William Falkener, the elder, by Smith Rodman, in the following words: "We have duly received your favor per Mr. Macon, with sundry papers enclosed respecting certain tracts of land, of the value of which you request us to make some inquiry here. We are entirely ignorant of this kind of property, and equally so with respect to the persons who are most likely to purchase it; and having constantly endeavored to avoid all kind of land business we hope you will pardon us if we decline appearing in this. From what we have been able to learn, however, there is no sale here for this kind of property." The writer then proceeds to request a payment upon their demand against the other party. Second, another letter from Smith Rodman to the same person, dated 25 April, 1798, as follows: "Your circular letter of the 11th inst. is received; the contents of which we have perused with concern, not only on our own account, but much upon yours. As we have been daily flattering ourselves with the hope of a remittance from you our disappointment has been severe. If the step you have now taken was not to be avoided it will be of little purpose to animadvert on our situation with you. As our disposition towards you has always been liberal, as we are deeply concerned in your ultimately discharging our debt, and, above all, as we really have confidence in the uprightness of your intentions, we shall not hesitate to come into the measures you have proposed to your creditors provided you will agree to make us secure as far as you have the power to do so. To this end we have to propose that you will take the trouble to have the enclosed powers of attorney (which you sent us (259) last spring), together with the signatures of the witnesses thereto, fully acknowledged before some proper authority, and transmit them to us thus proved in order that we may hold the property in trust until you have discharged our debt; upon which we will immediately agree to any reasonable propositions which will contribute to your accommodation."

Smith Rodman afterwards instituted an action in the Circuit Court of the United States for their demand, in which Edward Graham, Esq., of New Bern, was the plaintiff's attorney, and John Haywood, Esq., of Franklin, the attorney of the defendant. On 27 July, 1802, William Falkener, the son, before judgment, paid to Mr. Graham bonds and cash to the amount of £ 693 13 6, Virginia currency, and the suit was dismissed. In the meanwhile Smith Rodman had become bankrupt, and James Smith, Jr., and James Paul had been appointed their assignees.

The third and fourth documents annexed to Mr. Somerville's deposition are two letters from John Haywood, Esq., to William Falkener. The one is dated 11 January, 1804, and is as follows: "Please state your account since January, 1799, and the payments I have made. I will then add my account and send it to you with the balance in money either before I go or after I return from New Bern. I shall try to remember your grants." The word was first written deeds, but the pen was run through that and grants substituted. The other is without date and as follows: "To my surprise both Mr. Graham and Mr. Wood say they have not nor have ever seen the 5,000-acre grants." You had better write to the plaintiffs in the suit against you immediately."

The fifth is a letter to William, the younger, from James Smith Son, written from Philadelphia, and dated 23 January, 1806. Its words are: "In answer to your favor of the 15th inst. we inform you that in a small box which we did not know had anything in it we found two patents for land in North Carolina for 2,500 acres each in the name of John Willis, which appear as if they might have been lodged with Smith Rodman as a security. If these are the papers you wish you shall have them delivered to your order, or we will enclose them to you if you desire it, provided we are assured of the debt (260) having been paid. The account remains open in the books, and as a number of orders were given to those to whom they were indebted which we know nothing about you can perhaps inform us how this has been paid and to whom."

The sixth of these documents is a letter from Mr. Graham, of New Bern, to William Falkener, the son, dated 24 February, 1806, in which he says: "Yours of the 18th inst. is received. I am glad to hear that you are in a fair way to regain possession of the title deposited with Smith Rodman as a security for what your father owed them. The enclosed will afford that assurance which seems to be required as a prerequisite to the surrender of the papers." And therewith Mr. Graham sent a statement of the debt of William Falkener to Smith Rodman, amounting to £ 693 13 6 Virginia currency, with his own receipt therefor as of 27 July, 1802.

The next document is a letter of James Smith Son to the same person, in the following words: "Yours of the 5th inst. we have just received, and agreeable to your request we now enclose you the two patents which we are sorry we did not know of when personally applied to some time ago." This letter is without date, but is postmarked "Phila., 12 March," and the postage is charged thereon "1 1-4 oz. $1."

The next in order is a letter from the same persons to the same, dated 23 April, 1810, as follows: "Willet Smith, of the house of Smith Rodman, handed me a letter which you addressed to him on the subject of your father's debt to that house, and with respect to some papers left in their hands as security. I was some time ago appointed assignee under the bankrupt law of the estate of Smith Rodman, and I cannot find that this sum, due by your father, has ever been paid. There is no credit on the books and Willet says he has never received it nor given any order for it. I wish you would be so obliging as to make inquiry of the attorney at New Bern and know to whom he paid this money, if he ever paid it. I shall be glad to hear from you as soon as convenient; and, in the meantime, I have written to Willet Smith, who lives in New Jersey, to come to town and make search for the grants of land you speak (261) of, which I have never been able to find among their papers. If these cannot be found you may depend on my getting Willet to make the certificate you require and forward it."

The next document is a certificate made by Willet Smith before a notary public, 23 December, 1812, as follows: "This is to certify all whom it may concern that William Falkener, of Warrenton, in North Carolina, about 1798, put into the hands of Smith Rodman, of Philadelphia, merchants, two grants for land of 2,500 acres each, accompanied with a bill of sale from John Willis to said Falkener for said land and a power of attorney from said Falkener to Smith Rodman, authorizing them to dispose of said land; that some years after that transaction the said grants of land were returned to the said William Falkener, but that the bill of sale from Willis to Falkener and his power of attorney to Smith Rodman could not then be found, nor have they ever been able to find the same, they being mislaid or lost."

The next and last document produced by this witness on this part of the case purports to be a draft of a letter found among the papers of William Falkener, the son, from him to James Smith, Jr., dated 25 January, 1819, in which he says: "You informed me that if Mr. Willet Smith could find the deeds made to my father by John Willis and the power of attorney from the former to Smith Rodman they should be forwarded to me. In the hope that they may be found, and that from my long silence you may have thought they were not wanted. I again write, requesting that should that be the case they may be forwarded. If not found, I earnestly entreat that all the papers may be particularly examined. It is of great consequence to me to find those deeds from Willis to Mr. Falkener, and any expense or trouble which you or Mr. W. Smith may be at I will cheerfully pay."

The witness Mr. Somerville also states that among his intestate's papers he found an account in the handwriting of his intestate in the following form:

"MR. JOHN WILLIS TO WILLIAM FALKENER, DR.

(262)

1801, September 30th. To balance of account £ s. d. interest with T. B. G. Co ............... 174 10 2 1/2 Account with William Falkener .............. 335 11 2 1/4 Account with William Falkener, Jr .......... 27 11 11 3/4 Account with William Falkener, Jr .......... 42 2 2 1/2 Bonds and interest ......................... 150 2 11 Tavern account ............................. 15 10 11 ----- ---- ------ Virginia currency ............... £ 745 12 5" Cr." And that, accompanying the same were, in the handwriting of the said William the younger, the accounts mentioned in the foregoing summary, drawn out at large. They purport to be open accounts for dealings by John Willis as a customer in the respective stores of Thomas B. Gloster Co., William Falkener and William Falkener the younger. That of Thomas B. Gloster Co. began 25 April, 1793, and continued down to 8 May, 1795, and amounted to £ 119 6 6 3/4 principal money, which with the sum of £ 55 3 7 3/4 for interest computed to September, 1801, made the above sum of £ 174 10 2 1/2. That of William Falkener the elder began March 15, 1795, and continued to 8 January, 1799, and amounted to £ 274 6 8, which with $61 7 6 1/4 computed for interest to September, 1801, made the sum of £ 335 14 2 1/2. Those of William Falkener, Jr., began 29 April, 1799, and continued to 17 July, 1800, and with the interest thereon, computed also to September, 1801, amounted to the sums mentioned in the above general account. The item of "bonds and interest" consisted of bonds given by Willis to Thomas B. Gloster Co. for money lent in October, 1794, and March, 1795, and to other persons which appear to have been assigned to or taken up by one or the other of the Messrs. Falkener, and on them interest was also computed to September, 1801. On the general statement below the debits the word "Cr." is written, but no credit is set forth; and on the other several accounts mentioned there is no credit given for the price of this or any land, or indeed for anything except for the small sum of £ 1 5 3, (263) paid in cash 5 January, 1795. The firm of Thomas B. Gloster Co. consisted of Gloster and the elder Mr. Falkener, and did business up to about May, 1795, when Gloster retired, and Falkener took the whole to himself.

The same witness also produces an account between William Falkener and one William Christmas, who was a resident of Tennessee, and appears to have been the agent of Falkener as to some lands claimed by him in that State. In the account Christmas charges Falkener with the following items:

To cash paid for recording a deed in Tennessee ......... $1.35 To cash paid for your land tax in Tennessee for 1799 ... 6.04

On this account Christmas gave a receipt in full, dated 31 March, 1801, and at the same time he gave a receipt for $20, put into his hands to pay Falkener's land taxes in Tennessee,

Next follows a letter from the same William Christmas to William Falkener, and likewise found and produced by Mr. Somerville, dated Nashville, 10 July, 1802. In that letter the following passages occur: "I received yours by Col. C., and several others at different times. In answer to your former dates I have twice written by post, which I expect have miscarried. I now inform you your landed interest in this country stands in an ugly point of view. One thousand acres of your land only was advertised for sale for the federal tax. Col. Overton advised me to let it be sold as you had no deed recorded in this country, and that I should become the purchaser, and then let it be sold for the State tax and again become the purchaser and relinquish to you; and by these means he thought the title might be good in you. I took his counsel and did purchase, though only 100 acres was sold, which satisfied the tax. I now relinquish to you the aforesaid land I have purchased or may purchase while I have money belonging to you in my hands. I have yet between $12 and $15, nearly enough for two years taxes. I have not the courses of your land, and as (264) there is no record here I cannot say what it is worth as I do not know the land. I once brought to this country a deed of yours, and as it could not be recorded here for want of the necessary proof I returned it to you again and did not keep a copy. You will therefore please send me the courses of each tract by which I likely may ascertain the land and nearly its value."

The foregoing documents were all read upon the hearing, but upon an understanding between the counsel that they were read subject to all just exceptions; and in the argument the counsel for the defendants insisted that they were not evidence against the defendants but, as coming from the ancestor of the plaintiffs, they were evidence against the plaintiffs.

By the depositions of several persons resident in the village of Warrenton from 1790 to the bringing of this suit, and well acquainted with John Willis and the elder and younger Falkener, it is established that Willis was an imprudent, dissipated and intemperate man and lost his credit early in life, and as soon as 1798, and became insolvent. Gloster married his sister, and there was a close and intimate friendship between Willis and the elder Mr. Falkener, who was very kind to Willis and let him have the necessary articles from his stores when no other merchant would, but to what amount the witnesses could from no opinion except the late Judge Hall, who stated that he was under the impression each of those persons had told him it was to no great extent. That gentleman also states that at the time of this transaction, as alleged, land in the western district, to which the Indian title was not extinguished, was of very inconsiderable value, and that he did not recollect to have heard either of the Mr. Falkeners set up any claim to these lands.

But two witnesses, Richard Davidson and John C. Johnson, of whom the latter was the brother-in-law and one of the administrators of William the son, state that they were particularly intimate with William Falkener for many years before his death, and conversed freely with him upon the subject of his property, and often heard him say that he had lands in Tennessee which his father purchased from John Willis, (265) but that he had a difficulty in getting the title papers and had sent to Philadelphia to procure them; that he always spoke of the conveyance from Willis as an absolute conveyance to his father in consideration of debts due from Willis to his father, and never spoke of it in any other way or of having any other lands in Tennessee.

Robert Park, another witness for the plaintiffs and a brother-in-law of Willis, to an interrogatory on the part of the plaintiffs, "Did you hear Mr. Willis for many years before his death speak of the land in controversy, and particularly that he had conveyed to any and what person?" answers, "I have heard him say he had land in the western country. I do not recollect that I ever heard him say he had conveyed it to any person. I do not recollect the time I heard him speak of his western land. I had very little intercourse with him before his death. We were as friendly as brothers-in-law usually are for three or four years after his marriage with my sister, which I believe was about 1793." To an interrogatory on the part of the defendant "whether about the period John Willis took the insolvent debtor's oath and for some time before the faculties of his mind, and particularly his recollection and his capacity for business, were not greatly impaired by his general habits and course of life?" the witness answers, "I cannot say with any degree of certainty how long before his death his mind had become impaired, but it was considerable time, I believe several years before his death that he was incapacitated for business from insanity, a situation brought on by intemperance in drinking. I do not recollect that at the time he took the oath of insolvency he was or was not considered insane, but he was habitually intemperate a considerable time before that."

William Person states that he procured the warrants and grants for Willis and was intimately acquainted with him and William Falkener the elder, and never heard either of them speak of Willis having conveyed the land to Falkener. He never heard the latter speak of the lands at all. He, the witness, applied to Willis to purchase the lands, but Willis refused (266) and gave as a reason that he had placed them in the hands of William Falkener, Sr., to sell for him in the Philadelphia market. He further states that John Willis became insane, the insanity being brought on by dissipation. "I do not recollect at what time it became apparent, but it was several years before his death; three or four years, as I believe; fully three. His habits of intemperance were of long standing. When he took the oath of insolvency and for a short time before he was incapable of business, as I believe, from personal transactions and conversations with him." To the question on the part of plaintiffs "whether he had not capacity to remember, when required to render a schedule of his property, that he owned 5,000 acres of land," the witness answers, "I believe that at the time he had no mind at all or was in a state of insanity. It immediately preceded his confinement for insanity, I think."

Jacob Mordecai states that as a merchant at Warrenton he had dealings with John Willis from 1791 to 1804; that his credit was always slender, but was a little better after his marriage with Miss Park until 1797, when he failed and was deemed unworthy of credit, though considered honest. Until 1804 witness was in the habit of seeing Willis almost daily and thought him generally to be in his perfect senses. The witness, as a justice of the peace, in conjunction with another magistrate, administered the oath of insolvency to him in March, 1802, and discharged him, and he was then both sane and sober, as the witness thought. In 1804 he became notoriously insane and was confined until his death. To the question on the part of the defendants, "do you not believe that during the above period there were times at which he, Willis, was not in his proper mind?" the witness replies, "during the whole period of my acquaintance with John Willis he was of a reckless, frolicsome, jovial disposition. After the withdrawal of his wife from him, which was a few years before his attack of lunacy, he became very intemperate, and I have no doubt his mind was at times, when under the influence of liquor, as much or more deranged than men of his habits usually are."

Philip C. Pope states that at some time between 1813 (267) and 1819 John C. McLemore, of Tennessee, came to Warrenton and asked the witness and William Falkener the younger if they knew anything in relation to the lands supposed to belong to John Willis in Tennessee, to which the witness replied that he did not, though he would be glad to know as he had married a granddaughter of the elder John Willis, and might be interested in them; but Mr. Falkener made no reply whatever.

The late Mr. Grundy, of Tennessee, states that the lands in controversy were within the Indian Territory until 1818; that no State tax was imposed on them until 1819; and no tax by the United States at any time.

Thomas Rodman died about 1829 or 1830 in Philadelphia, but had spent much of his time after his bankruptcy in India.

Willet Smith died in July, 1839, in Camden, in New Jersey, in which State he generally resided after his failure. The year before his death the plaintiffs gave notice to take his deposition in Philadelphia, but he did not attend, and notice was again given to take it at a place in New Jersey, but without its being taken.

James Smith, Jr., one of the assignees of Smith Rodman, died in Philadelphia in 1834 or 1835; and James Paul, the other assignee, died in May, 1839. In the latter part of 1839 the sons of those two persons thoroughly examined their papers for deeds from Willis to Falkener and for the letter books of Smith Rodman, but could find no such documents.

The perusal of the pleadings and proofs in this cause cannot well fail to produce the impression that if the plaintiffs do not succeed it will not be so much from the injustice of their demands being established as from the defect of that kind and extent of proof which authorizes the Court affirmatively to declare its justice and enforce it.

The bill is founded on the allegation of an executed absolute conveyance, constituting a legal title with the exception of the ceremony of registration, and lost; so that it cannot be set up for the want of registration. The object of the bill is to be relieved from loss by that accident by requiring the (268) defendant, as the heir of the person who made the lost deed, not to take advantage of that accident but to execute another. The equity cannot be denied if the facts on which it is founded be established. There should be a decree for the plaintiffs without regard to the consideration, provided it was such as would render the deed effectual in law, for the jurisdiction is simply to set up a legal conveyance which was good in itself and has been lost, and the inquiries are confined to the points of its existence, legal operation and loss. Tolar v. Tolar, 16 N.C. 456.

It may at once be stated that sufficient inquiry appears to have been made for this instrument, if it ever existed, to authorize the declaration of its loss. Still it is incumbent on the plaintiffs to show its existence at one time and its contents. At law the existence of an instrument as a genuine one is shown by proving its execution according to the nature of the instrument, that is to say, by the subscribing witness, if there be one, or by proof of handwriting. This is ordinarily true in equity also. Goodees v. Lake, 1 Atk., 246. It cannot be otherwise, for in reason as well as in law things which do not appear must be regarded as if they did not exist. After it be thus shown that the instrument existed its operation and effect may be established by proving the contents by the best evidence in the party's power, such as an examined copy, the registry of it or the oral testimony of witnesses who can state the contents or the admission of its contents by the person executing it. But in this case all those ordinary proofs are wanting. There is no evidence of execution coming from a subscribing witness; there is no evidence of any witness who ever saw such a paper as that stated in the bill, much less that it was attested by any particular person, and that the witness knew the signature either of John Willis or of the attesting witness. Nor indeed has any witness been examined who states more upon this point than that he had heard either from the elder or the younger Mr. Falkener that Willis had made a deed for this land in discharge of the debt he owed Falkener, but without any further particulars as to price (269) or a witness cognizant of any treaty of purchase or attesting the conveyance. It is obvious that the plaintiffs have alleged, and therefore undertake to establish, a case difficult of proof, even under favorable circumstances and where the facts are recent, and the difficulty of making satisfactory proof becomes extreme after the lapse of forty years and the death of the parties and of nearly all their neighbors and friends, who might and probably would have knowledge on the subject of controversy. It was said in the argument that such disadvantages naturally lead to defects in the proofs, and therefore that these ought not to be a fatal as if they grew out of a transaction to which more direct of full proof would be in the party's power. The inference drawn was that the Court ought in such a case to be satisfied with less proof of the truth of the ancient alleged facts. To that inference we cannot yield our assent. The modes of proof may be different, but they must be equally satisfactory to the mind. There are, for example, old transactions of which the law dispenses with direct proof on account of their age, and in place of proof puts up with presumptions. Thus, instead of the production of a conveyance by one who has been a very long time in possession of land, not acknowledging to hold under the former owner but openly claiming and treating it as his own, the law presumes a conveyance to the possessor and its loss. But here there is no possession of the land. It is true there could be none, for the Indians occupied the territory. The want of possession is, indeed, not evidence in this case that such a deed was not made. But the plaintiffs have to show affirmatively that it was made, and long possession is stringent proof of the conveyance. That there was no possession then, from whatever cause it may have arisen, does deprive the plaintiffs of the benefit of possession as affirmative evidence of such conveyance of their ancestor. In the case too of a deed thirty years old proof of execution of dispensed with. But it is the generally received opinion that to render such a deed admissible there must be some account of its proper custody, and also evidence that the party has been in possession under it, for it is the accompanying possession of the land that establishes the authenticity of an ancient deed. Jackson v. Blansnaw, 3 John., 292. At all events, the rule applies only to a produced (270) deed, of which the proof of execution is dispensed with on the presumption that the attesting witnesses are dead. 1 Stark. Ev., 330. It has no application to the doctrines of presuming or proving the existence of deeds. In this case, therefore, there are none of the common grounds for dispensing with proof of the execution of an ancient deed or for presuming a deed further than its existence may be established by direct or circumstantial evidence, satisfying the mind of the very fact in the same manner as such evidence would be demanded upon any other question. The presumption from lapse of time is, then, really against the plaintiffs, because, in the nature of things, the truth is likely to be obscured, the facts forgotten and material witnesses dead and the Court misled by specious appearances, all in proportion to the longer or shorter time intervening between the happening of a transaction and the investigation of its existence and consideration and purpose. As the plaintiffs come late to establish their case it may be true that they cannot do it as clearly as they once could. That is their misfortune. But still the Court must have proper and full proof, such as will produce the conviction that long ago as it is said this deed was executed, yet in fact it was then executed and was an absolute conveyance. The cause depends upon the inquiry whether such proof is found in this case.

Aware of the great deficiency of the usual and requisite proofs given of an instrument, which the party alleges to have been lost and seeks to supply, the draftsman of the bill, after stating the existence of the deed, proceeds to admit and account for deficiency of that kind of evidence, and endeavors to substitute evidence of a different kind as tending to establish its existence. It is stated that the plaintiffs cannot prove the execution of the deed, nor produce a copy of it, nor show the consideration stated, nor its contents in particular. But it is charged that Willis was indebted to Falkener to more than the value of the land, and was not able to pay, and never did pay the debt except as the price of this land, and that the land was purchased (271) by taking it in satisfaction of debts. The bill then states "that there can be no doubt that Willis did make the conveyance," and that for several reasons: that Mr. Falkener had possession of the grant and conveyed the land with the privity of Willis, who attested the deeds, and that Mr. Falkener, the son, also claimed it up to his death, and was for many years in search of the deed from Willis as that under which he claimed; that the title papers had been deposited with the house of Smith Rodman, of Philadelphia, for the security of a debt, and that they declared this deed was lost; that the registry of the deed was burnt, which prevents the production of a copy, and that Willis did not claim the land after 1798, and that in 1802, he in the most solemn manner disclaimed it by taking the oath of insolvency.

Upon the allegation that the register's book between 1797 and 1802 was burnt the plaintiffs have offered no evidence, and according to the answer the book destroyed was that from 1799 to 1803. This circumstance is therefore out of the case; and it must be taken that there was no registry of such an instrument, inasmuch as in May, 1797, this deed, according to the plaintiffs' allegation, was in Philadelphia, and never got back.

Although no witness professes to be sufficiently acquainted with Willis's handwriting to form a judgment satisfactory to himself whether the signature as an attesting witness to the deed from Mr. Falkener to his son be that of Willis or not, yet our opinion does not proceed on that, and the case may be treated upon the admission that he is the witness. Formerly privity was imputed to an attesting witness. Men may have been much more particular in those days than in ours as to the subject-matter of deeds witnessed by them; and if witnesses generally were in the habit of ascertaining the contents of a deed before attesting it there might be some reason to infer the fact against all. But in practice few persons ask much less peruse for themselves to learn the provisions of the instruments they are about to attest. There is therefore no just inference in fact of the knowledge of the contents, and now there is no such legal presumption. Sug. Ven., 547. But the terms of these deeds would have afforded Willis no certain information (272) upon the point. There are no metes nor bounds, no reference to the conveyance or person under whom he claimed, not even the river mentioned on which the lands lie, nor the number of acres. There is nothing in the description to identify the particular land, and if Falkener had claimed no other land in Tennessee, still Willis had no means of knowing that or that the lands meant were granted to himself. But there is evidence, which will be more particularly considered subsequently, that Falkener had deeds for two other tracts of land in that State, and consequently that it ought not to be inferred that Willis supposed his lands the subject of the deeds he witnessed.

With respect to the indebtedness of Willis to Falkener it is to be observed that there is no legal evidence thereof except as to the bonds and notes for £ 150 2 11. The accounts are unsupported by any proof of the delivery of the articles. The only evidence is the statement of Mr. Somerville that the accounts as stated are in the handwriting of the younger Mr. Falkener, and were found among his papers. It does not even appear that these accounts have been compared with the original entries in the books, all of which were in that gentleman's possession. Besides that there is the testimony of several persons of the village that Willis had dealings in the stores, but to what amount no one intimates except Judge Hall, who says he was told by Willis and Falkener both "that it was to no great extent." To so material a part of the plaintiffs' case the proof is, therefore, far from satisfactory. But let it be admitted that here it is sufficient to show dealings and some indebtedness, and that the evidence goes to that extent. Yet there are several things connected with these accounts as stated that seem irreconcilable with the supposed conveyance made, if at all, between December, 1796, and May, 1797. The inference the plaintiffs draw is that as Willis must be supposed to have conveyed to some person before March, 1802, it is to be presumed it was to Falkener because, among other reasons, he owed Falkener and had no other means of payment but this land, on the credit of which alone he must have been trusted, except so far as motives (273) of friendship might at times dictate some assistance. Upon an inspection of the accounts it is seen that at the supposed date of the deed Willis had contracted only for the debt of Gloster Co. and not quite £ 100 of the amount to the elder Falkener, and about one-half of the bonds, making together not quite £ 300. Now when he made the conveyance, if he did make it, it seems agreed that he had nothing left and was absolutely insolvent. Why then should the two Falkeners, especially the son, have supplied him with goods and paid debts for him after that to the amount of more than £ 300 Virginia money, that is to say, between January, 1797, and July, 1800? At this latter period the dealings stopped short. Why did they not stop when by making the deed Willis had paid all he could then pay or, as was obvious, would ever be able to pay? If the deed was absolute then there is the extreme improbability that without a penny left and with the worst habits he should have been further trusted for about $1,000. On the other hand, if he mortgaged the land or, as is more readily conjectured, he appointed Falkener his attorney or, at his suggestion, appointed Falkener's correspondents and creditors his attorneys to sell the land, it is natural that Falkener should have trusted him. The value of the land was unknown and there would be an understanding either that the land should be a security for all advances or, at any rate, the money would pass through Falkener's hands and he could indemnify himself. But a still more material consideration arising out of the accounts is that there is no credit for the land at any supposed price. It is not pretended that Falkener paid cash for the land. Falkener had none to spare it seems, and Willis is not known to have received any. Nor is it suggested that there were other debts between these parties except these, and they go back to the beginning of 1793. Consequently if there was a sale the price ought to appear in these accounts. But it does not, and its absence without explanation most strongly repels other evidence and all idea of an absolute conveyance. It is true that if the existence of the deed could be clearly established there would need no further proof of (274) the consideration but the contents of the deed itself. But here the existence and contents of the deed are not directly established, and the dealing of the parties to the supposed instrument form the evidence or part of the evidence on which it is insisted that the instrument did exist. And in that point of view this is the most material part of the case. The bill brings it forward as such, and every one must perceive that it is so. But when it is found that the statement of the bill on this head is a total mistake, that the debts were not paid, but the bonds retained by the creditor and the account kept open and without any credit for the land, is not the inference of an absolute deed from the indebtedness of the bargainor or from any other evidence merely circumstantial, most materially weakened, perhaps entirely rebutted? But further, the interest on each of these debts is computed as if the whole was due up to September, 1801, and the whole brought into a general statement. From these undoubted facts what presumptions are proper? It cannot be that these debts were satisfied by the land four years before the making of the general statement, as is charged in the bill. Are they not rather those before spoken of, either that Falkener was to sell the land or have it sold for Willis and pay himself, or that it should stand as security for existing and future advances? If Willis had sold, this statement was useless; at all events that part of it which was made up of the debts that were to be paid by the land was wrong. But if he had not sold then it was in the common course of business that the creditor should let Willis see that he had taken up the worth of the land and could get no more credit on it. Accordingly he received no further supplies. Every one must form the opinion from the circumstances thus connected with the debts that the statement was made to effect an adjustment between the creditor and debtor at or after the period of the statement, and consequently that there is an insuperable impediment to the belief that four years before there had been a sale of this land in discharge of these debts or such part as had then been contracted.

Notwithstanding the conclusion that seems so necessarily to follow from the considerations immediately preceding the circumstance that the oath of insolvency was taken by (275) Willis, relied on in the bill, was correctly and ably pressed in the argument. This fact is beyond question. From it was deduced, first, that Willis had, before taking the oath, conveyed the land to some person; and, secondly, that he had conveyed to Falkener because there is no evidence of a conveyance or a dealing with any other person, and there is evidence of some transaction between these persons in respect of the land. We think there is no just reason to think that Willis did convey to any other person except only the inference resulting from the oath of insolvency, in case it should not appear that he made a deed to Falkener, which is arguing in a circle. The answer, indeed, states that his widow informed the defendants of his declaration of an intention to give the land to his daughter. But the declaration itself is not proved, much less that in conformity to it he either did convey or said that he had conveyed. On the contrary Mr. Person states that though intimate with him he never heard him speak of such a conveyance, but he did say he had put the lands in the hands of Mr. Falkener, Sr., to sell for him in Philadelphia, and for that reason he refused to treat with the witness for the sale. But though he did not make a deed to his daughter or any other person it does not follow that he made one to Mr. Falkener. There is no declaration of Willis that he had conveyed to Falkener more than any other person. He may have done so, either to Falkener or to another. But there must be evidence of such a conveyance in particular before the Court can establish it. It is not enough that the former owner disclaimed the land in the most solemn manner imaginable. Another person can claim only by showing the existence, in fact, of a conveyance to himself. In itself the oath of insolvency is inconclusive of any such conveyance having been made, and more particularly of its having been made to Mr. Falkener. It is indeed a circumstance of very great moment in a chain of circumstances tending to establish a conveyance by the insolvent. But it is inconclusive in several ways. The oath may have been taken corruptly. Though not corrupt, it may have been false. In either case the party continued (276) to be the owner. It is acknowledged that neither of these suppositions is to be lightly admitted, for it is both the fair and the legal presumption that the party did not swear falsely and especially not willfully. But if after such oath no one can produce a conveyance, nor its existence at any time be legally established, then, however painful or uncharitable, the conclusion cannot be resisted that the oath was at the least not true. It comes back, then, in every case to the inquiry whether the party who claims that the insolvent had sold to him can show or establish the deed. Here the effort is to do it by circumstantial evidence only. But the force of such evidence depends on the number, tendency, agreement and conclusive nature of the circumstances in themselves which may be adduced to establish a conclusion, and also on the important fact that there are not opposing circumstances, whose existence cannot be denied, which are inconsistent with that conclusion. In such a case he who has the affirmative to maintain must not expect belief to be yielded when circumstances are thus irreconcilable. We will not venture to say that there was no sale or conveyance to Mr. Falkener. There may have been, and the very assertion of the fact by an honest man will gain a belief in its truth in the mind of one who knows the claimant. But judicially we cannot proceed on such a ground, but only on competent and sufficient proof. We have already considered a circumstance in this case which seems to stand opposed to every supposition of an absolute conveyance. We mean the state of the accounts as appearing upon the creditor's own papers. We cannot assume that Willis intended to give the land to Falkener. Then, if there be no evidence of the payment of any price, there was no sale. Consequently there was no conveyance of any sort. But if there was it is at least as probable, and more so, that it was a security as that it was absolute, inasmuch as after the conveyance the party conveying was still trusted largely for a time, and that could have been upon the credit of this fund only; and further, there never was an adjustment of accounts, as upon a sale, at all events not before September, 1801, nor, as far as appears, afterwards. The supposition of such a security being intended or of an agency to sell is fatal to this bill, as much (277) so as finding that there was no conveyance of any sort. For the bill proceeds not at all on the footing of a security, but exclusively on that of an absolute deed; and it could do no less since Mr. Davidson and Mr. Johnson, to whom alone Mr. Falkener in any degree explained his claim, state that he said the deed was absolute and in consideration of the debts to his father. If this account of the consideration appear not to be true what is the inference? Why that there was no deed or only a security intended. If the latter was the true character of the transaction it furnishes, to a considerable extent, a solution of the difficulty arising out of the oath of insolvency, without imputing to the party corruption or any other impropriety than one with the habits and in the condition of this unhappy man might have fallen into, without violating or alarming his conscience. Seeing upon the statement of September, 1801, the accumulated debt of £ 745 12 5, he was probably thoroughly convinced that the land was not worth the sum and could never pay the debt. Therefore, as he might conceive, substantially he had no interest in the land and might safely take the oath, especially as it would be natural for Mr. Falkener at that time to agree to take the land in discharge of his debt, as he could get nothing more. But that also would be inconsistent with the bill, which affirms an absolute deed in 1798, or rather in 1797, that is to say, before any communication with Smith Rodman. It is true we have nothing from Willis himself that he conveyed by way of security; and if it clearly appeared in any way that he certainly made a conveyance of some sort his silence as to its being a security would materially repel such a presumption. But it does not thus appear that he did convey at all, and therefore the question is, if he did convey whether he more probably did so absolutely or by way of security. The circumstances arising out of the accounts are in themselves strong to show that it could not be an absolute deed. As to the silence of Willis respecting the security it is to be remarked that he was also silent as to having conveyed absolutely; which, upon the supposition (278) that such a deed was made, is very extraordinary. That a man who had no other property should not in the course of five or six years once mention to his friends or family that he had parted with 5,000 acres of land is very singular. Yet there is no such declaration, although the inquiry is made by the plaintiffs of several witnesses, particularly his brother-in-law, Mr. Park, and his next neighbor, Mr. Person. Indeed the total oblivion, as far as affirmatively appears, into which his mind seems to have sunk upon the subject of his property, whether he retained it entirely or had conveyed it absolutely or as a security, denotes such a disregard of matters which interest mankind as perhaps affords more satisfactory evidence of a state of mind not perfectly sound than the mere opinion of any witness. This circumstance, with the direct evidence upon that point, must leave an impression greatly weakening the influence which the oath of insolvency per se might have. It does not appear that at the juncture of taking the oath Willis was in a situation to prevent the magistrates from administering it. Mr. Mordecai thinks he was at the time both sane and sober; and no one speaks to the contrary at that very juncture. But he also says that Willis was always reckless, and he and Mr. Park and Mr. Person state that he was for a long time before taking the oath habitually and excessively intemperate, tending rapidly to insanity, and terminating in it in 1804, as stated by Mr. Mordecai; "for a considerable time, he believes several years, before his death," as stated by Mr. Park; and "for three or four years before his death," as stated by Mr. Person. Indeed the last witness is positive he was insane at the time of taking the oath. We cannot expect precise accordance as to dates from the most accurate persons after so long a time. But from his habits the opinion of the witnesses taken together, and from the final issue of his reason being overthrown at a subsequent period not distant from that of taking the oath, we are satisfied that the condition of this man was such as to add another circumstance to those already mentioned to detract from the effect that would naturally follow from taking the oath of insolvency in ordinary cases.

We cannot attribute much virtue to the possession (279) of the patents in a case presenting the points of doubt hitherto adverted to. Such a possession consists with the supposition of an absolute conveyance, or a security, or a mere agency to sell, for in either case the grants ought to go forward. Therefore this circumstance, like the preceding one, is inconclusive of a sale, and leaves the questions of the character of the conveyance or of its existence to be determined by the other relevant circumstances.

But it is said that the conveyance of the land by the father to the son, and the pledging it by one or both of them to Smith Rodman, were acts of ownership which, connected with the claims of ownership, show that the paper executed by Willis was an absolute deed. It is important then to ascertain, if it can be ascertained, whether the father did convey this land to his son. If he did not, then all the subsequent claims of the son, however formal, must fall to the ground, since they are put in the bill and rest in fact on the allegation that these lands are included in the deeds of October, 1798. These deeds are for "two tracts of land unto me belonging, which are lying or situate in Cumberland or Davidson, in the western territory, the particulars whereof I cannot describe not having their plats now in my possession." The argument for the plaintiff is that Mr. Falkener owned no land in Tennessee unless he owned this, and therefore he did own this. The conclusion is not logical, for he may have owned neither this nor any other. But admit that he did own two tracts of land in that territory, as stated in the deeds, yet it is to be determined whether these are the two. In the first place there is no description showing an identity between the lands granted and those deeded. It is naturally to be supposed if these are not the two tracts mentioned in the deeds that they would also have been mentioned as particularly as the other two, since it is difficult to conceive a more vague description than that of the two tracts found in the deeds. In the next place, the father intended to convey all his property to his son, as is indeed stated in the deeds. Indeed the arguments on the opposite sides agree in this, that Mr. Falkener in October, 1798, owned but two tracts of land in Tennessee, (280) but they thence draw very different conclusions. The plaintiffs say that because he claimed but two tracts they must be the Willis lands; the defendants say that for that reason they could not be the Willis lands since he owned and claimed two other tracts. For this position the defendants' counsel relies on the documents coming from Christmas, the Tennessee agent of Falkener. It is nearly certain that Christmas never had the deeds executed by Willis if any such there were, for they were, according to the plaintiffs' allegations in Philadelphia so soon after the period when they must have been executed that there was not time to send them to Tennessee and back at that day. Besides, it could hardly be that Christmas would have had one deed from Willis proved and failed to get the other proved also, as it is to be supposed both would be attested by the same witnesses. But this point seems to be placed out of doubt by the account of Christmas of March, 1801, and his letter of July, 1802. The land on which he paid the taxes must have been those included in the deeds mentioned by him, of which one had been recorded and the other not for want of proof, and he asks for the boundaries of "each tract." Therefore he had two tracts under his care. Were they these or either of them? It would seem not, almost to a certainty; for the lands spoken of by Christmas had in 1799 been assessed for taxes, which he had paid, and then again next year were assessed for a Federal and State tax under which he allowed them to be sold to complete the title. The lands thus assessed must have been within what was called the settled parts of the State, for only on lands to which the Indian title was extinguished was a tax of either kind levied. Mr. Grundy states explicitly that these lands on the Forked Deer were occupied by the Indians until 1818, and were not taxed by the State until 1819, and never by the United States. If this be so, and it seems unquestionable, it would seem that Mr. Falkener owned two other tracts besides these, and therefore that he did not own these. If he had he would have conveyed four instead of two, as mentioned in the deeds. But if the probabilities be equal on opposite sides of this (281) question the plaintiffs must yield it, as on them is the onus.

Besides there is another fact bearing on this part of the case deserving of notice. The force of circumstantial evidence depends not only on the consideration that the facts on which the presumptions are founded are ascertained, but also that nothing is withheld which if produced would show the facts to be different or authorize an opposite deduction from them. Now it appears from one of the deeds of October, 1798, that the assignment then made was not the first for the same purposes. Indeed Smith Rodman's letter of April, 1798, shows that Mr. Falkener had addressed a circular to his creditors proposing terms and advising them of an assignment of some sort. The second deed of October, 1798, explains this by reference to "an original assignment dated 5 August, 1797," whereby the son obliged himself to pay his father's debts. This was after Willis is said to have conveyed. Where is that original assignment? Why is it withheld without any account being given of it? That went back nearer to the period of Willis's deed, if there was one, and may have described the Tennessee lands more particularly. If it did, are we not to suppose the plaintiffs would have produced it if it would cover the Willis lands? On the other hand, if it mentions no land in Tennessee would there not arise a rational presumption that Willis had not conveyed to Falkener before August, 1797? We repeat that we are not concluding from this positively that Willis never made such a deed, or that it would so appear from the assignment of 1797; but we must point out the considerations that tend in our judgment to impair the force of the facts relied on for the plaintiffs as circumstantial evidence of that supposed deed, and among them we cannot judicially find that the deeds of October, 1798, do cover the lands granted to Willis, because the description is too vague to identify them, and probably the lands thus described might be other tracts and not these; and this the more especially because the plaintiffs' ancestor had another deed which almost certainly related to the same subject and would therefore elucidate it, but they do not submit it to our view nor show any reason why they do not. Therefore we cannot see our way to declare that these are the lands which the elder Mr. Falkener conveyed (282) to his son by the deeds mentioned in the pleadings.

Supposing however that point to be doubtful on the face of the deeds and on the evidence hitherto discussed, it remains to be considered whether there are other acts of the parties calculated to remove the doubts. It is said there are, and that they consist of the claims and endeavors of Mr. Falkener to recover the supposed deeds. With the view of showing those claims and efforts the declarations to Davison and Johnson and the correspondence with the several persons whose letters were read are relied on. To that extent we incline to think they are evidence merely as facts which evince inquiry and claim, and not as evidence of the truth of the statement in the letters. The periods of the declarations in question are not distinctly stated. But we presume they must have been subsequent to the application in Philadelphia, because in the conversations with his friends Mr. Falkener said he had sent there to inquire for the deed. When was that? His own letters are not exhibited except what purports to be a copy of one in 1819. We can therefore collect the substance of Mr. Falkener's letters only from those in reply. How do they represent the matter? Can it be inferred from them that such a paper was ever sent to Smith Rodman? It does not appear that any papers were ever sent to them, even admitting the contents of the letters to be true, except those carried in May, 1797, by Mr. Macon, then attending Congress in Philadelphia. But there does not appear to have been such a deed among them. The letter acknowledging the receipt of them merely speaks of "sundry papers respecting certain tracts of land," and then declined an agency to make sale of them. But when that house became willing to lay hold of the lands as security in consequence of Falkener's circular in 1798, they then mention the character of the papers, and request him to have "the enclosed powers of attorney (which you sent us last spring) fully acknowledged" and returned to them to be held as a security for their debts. These reached Mr. Falkener, but it does not appear that he ever returned them to Smith Rodman. Probably he did not, for if the land was Willis's it ought (283) not to be have been hypothecated for Falkener's debts, and if it had been conveyed by Willis to Mr. Falkener and by him to his son in August, 1797, for the benefit of all his creditors, he ought not and would not have sent to Smith Rodman powers which would have amounted to a peculiar security for them. In the absence of evidence it cannot be inferred that those papers ever went out of the possession of Mr. Falkener again. Why are they not produced? Smith Rodman's letters do not mention a deed from Willis to any person, nor specify by whom the letters of attorney were made. If made by Falkener it can hardly be doubted they would have been exhibited if yet in existence, and there is nothing to show the contrary. If made by Willis it might be expected they would be kept back because they would afford a strong implication that he made no deed of conveyance. Indeed in not one of these documents is a deed from Willis mentioned except in the certificate of Willet Smith. In that it appears for the first and the last time. James Smith speaks only of "grants." If such a deed had been forwarded by Falkener with the grants when he inquired for the letter would he not also for the former? And if such an inquiry had been made it cannot be supposed that James Smith would have taken no notice of it. Yet in the letter of January, 1806, he states that he had found the two patents in a small box, and in that of March following he says, "agreeably to your request we now enclose you the patents." Up to that time it does not appear that an inquiry had been made for any paper but the grants. How too can we account for the deeds being separated from the patents? No reason can be assigned for taking some of the papers from the others unless for the purpose of sending some of them home for probate. But we have seen what sort of papers were sent home, powers of attorney and not conveyances. If there had been a deed from Willis to Falkener why was it not as necessary to have that proved as the letters of attorney from Falkener? We have before seen that there was no reason to suppose that it had been proved. There is then nothing upon these papers that can enable us to say that such an instrument was sent to Philadelphia, and it is not pretended (284) that there was any paper executed by Willis that was not sent there. If Willet Smith's statement was a deposition it would be very unsafe to decree on it. He states that the grants were returned. That was true, but he did not know it as he lived in New Jersey and James Smith sent them. He says there was a bill of sale from Willis to Falkener and a power of attorney from Falkener which were not returned; whereas, in the letter of April, 1798, with the papers before him, they are called "powers of attorney" and not a power; and moreover, the powers of attorney were sent to Falkener, and it does not appear they were afterwards put into the hands of Smith Rodman.

But there are, we think, several circumstances which raise fair legal presumptions against the plaintiffs. Among them is the delay of Mr. Falkener to institute proceedings to establish the deed as soon as he discovered the loss, when in all probability there were witnesses living who, if there was such a deed, could have given direct evidence of it. It does not appear that Mr. Falkener, the father or son, ever mentioned the name of any person as a subscribing witness to the alleged deed. Why did they not? It is not probable that in 1806, when the grants were sent to him, all cognizant of the matter had died or that he had himself forgotten. Gloster lived several years afterwards, and he could at least have stated whether he understood these lands to be those mentioned in the deeds of October, 1798, and what Willis said when he attested those deeds respecting the lands granted to himself. Yet no inquiry was made of Gloster for any public and open claim set up to the land by Mr. Falkener, as is stated by the witness Pope, and is to be inferred from the testimony of the witnesses generally. Furthermore, it appears that Mr. Macon, who carried the papers to Philadelphia, lived in the same county with the parties for several years after the present suit was brought, and no attempt was made to get his evidence. It may be that he had forgotten the circumstance, but in such a case as this he ought to have been required to state even that. And it is yet more remarkable, if possible, that Willet Smith, who it is said had the custody of the paper lost, and from whose declaration of its loss that fact is (285) sought to be inferred, should have lived to 1839, with his residence known to Mr. Falkener from 1810, and that his testimony to these important facts should not have been taken, if in truth he could have proved them. How can parties expect a court to decree on mere circumstances and many of them not consistent with themselves, while they fail to bring forward direct evidence so completely and so long in their power?

Upon the whole we must say that whatever may have been the real transaction the plaintiffs have not established by proof that John Willis executed an absolute deed of conveyance to William Falkener, as alleged in the bill, for the lands in controversy. It would be too much to declare the existence of such an instrument when its execution is in no manner proved, either by witnesses to it or by a person saying he had seen it, or even by a single declaration of the supposed bargainor, and when there has been and could be no corresponding possession, besides many other circumstances to render it at least probable that no such instrument was in fact ever executed.

PER CURIAM. Bill dismissed.

Cited: Hill v. Johnson, 38 N.C. 438; Smith v. Turner, 39 N.C. 441; Walker v. Coltrane, 41 N.C. 82; Hodges v. Spicer, 79 N.C. 227; Brendle v. Herron, 88 N.C. 386; Davis v. Higgins, 91 N.C. 387; Loftin v. Loftin, 96 N.C. 100; Land Co. v. Board of Education, 101 N.C. 41; Mock v. Howell, ib., 49; Edwards v. Dickinson, 102 N.C. 523; Harding v. Long, 103 N.C. 7; Abernathy v. R. R., 150 N.C. 106.

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