Opinion
July Term, 1807.
Plaintiff offered in evidence a copy of a registered deed, offering to swear that he had not the original, nor knew where it was. Defendant had given notice to plaintiff to produce the original; and leave was then given to him to show that the original had been altered before its registration, and had been since destroyed by the approbation of the plaintiff. Copy refused in evidence, and plaintiff nonsuited.
UPON the trial of this action of ejectment the plaintiff offered as evidence to the jury a registered copy of a deed from Martin and Edward Franks, to the plaintiff's grandfather, also called Edward Bryan. From him the land by said deed conveyed, as it was alleged, descended to John Bryan, the plaintiff's father, who, on 25 September, 1786, conveyed the same (153) to Edward Bryan, the plaintiff, John Hill Bryan, William Bryan, Frederick Bryan and Joseph Bryan, reserving to himself a life estate. The defendant alleged that in the deed from Martin and Edward Franks to the plaintiff's grandfather, an alteration had been made of one of the courses of the land previously to the registry of the deed, so that on the copy offered to the jury it appeared north 5 deg; east, instead of north 45 deg; east; objected to the copy as evidence, and insisted that the original deed should be produced. The plaintiff offered to swear that he had not the original, and knew not where it was. The defendant begged to be permitted to show to the court by testimony that the said original deed had been destroyed intentionally, with the approbation of the plaintiff, to prevent the alteration of its course being seen; and he proved that he had caused a notice to be served upon the plaintiff that the production of the original deed at the trial would be insisted on. He was permitted to introduce the evidence to show the alteration of the deed, and the evidence being full and satisfactory that the deed had been altered, the plaintiff was nonsuited. A rule was obtained upon the defendant to show cause why the nonsuit should not be put aside and a new trial granted, on the ground of misdirection by the court, and the case was sent to this Court for the opinion of the judges.
From New Bern District.
The attempt of this plaintiff to introduce in evidence a copy of the deed under which he claims, connected with the circumstances of this case, certainly deserved no countenance from the court. The claim had once been tried (when the original deed was introduced), and failed on account of the marks of fraud and alteration upon the face of the deed. The plaintiff and those connected in title with him under the same deed afterwards declare that deed shall not again make (154) its appearance to defeat their title; and in conformity with that declaration the plaintiff now swears that he has not that deed in his possession, nor does he know where it is. All this may well comport with a fraudulent concealment or destruction of the deed; and the court will not presume favorably of an attempt so strongly marked with fraud. If this plaintiff and those connected in interest with him have so contaminated that evidence which the law considers the best to be submitted to the jury, the court will not aid them by permitting the introduction of inferior evidence where the marks of fraud do not appear. It seems to be a leading principle laid down in all the books on the subject of written testimony, that all original private deeds or other instruments (if in existence, and in the power of the party) shall be produced on the trial. But where the original has been destroyed or lost by accident, as where as original award was lost in a mail which was robbed, or being in the hands of the adverse party, and notice given to produce them, then an examined copy or even parol evidence of the contents, being the best evidence in the power of the party, may be received. Peak, 63. Yet this is always upon a principle of necessity, and to avoid injustice where the party has been guilty of no fraud; and to permit this plaintiff to give in evidence the copy which he offers would be to afford to him the very advantage intended by his fraud. Let the rule be discharged.