Opinion
June Term, 1813.
1. Giving copies of deeds in evidence. A person who ought to have the custody of a deed shall exhibit it to the court in the deduction of his title; but he may give a copy in evidence upon making oath that the original is lost or destroyed. If it be in the adversary's possession, notice to produce it must be given to authorize the introduction of secondary evidence.
2. And as to the cases where a party ought to have the custody of the original deeds, where land is sold without warranty, or with warranty only against the feoffor and his heirs, the purchaser shall have all the deeds as incident to the land, in order that he may the better defend himself. But if the feoffor be bound in warranty, and to render in value, he must defend the title at his peril, the feoffor is not to have custody of any deeds that comprehend warranty of which the feoffor may take advantage.
3. A purchaser at sheriff's sale is only privy in estate, and is not supposed to have custody of the original deeds.
IN this case the following questions were submitted to the Supreme Court:
1. Shall one who has purchased lands without a warranty be permitted to give copies of title deeds, except of that immediately to himself, in evidence, without an affidavit by himself to account for the nonproduction of the originals?
2. Shall a purchaser with general warranty be permitted to give such copies in evidence without such affidavit?
3. Shall a purchaser at a sheriff's sale be permitted to give such copies in evidence without such affidavit?
The law, proceeding upon the rule that the best evidence the nature of the thing is capable of shall be produced, requires the person who ought to have the custody of the deed to exhibit it to the court in the necessary deduction of his title; and in such case a copy from the register's office, or even inferior evidence, has by the constant practice (271) of courts in this State been admitted, upon the oath of the party that the original is lost or destroyed. If it be in the adversary's possession, notice to produce it must be given to authorize the introduction of secondary evidence. But where the law does not suppose the party to have custody of the deed, either as party to it or as privy in representation, it admits at once inferior proof, without requiring the oath as to the original.
The cases in which a party ought to have custody of the original deeds, and where, consequently, he will be compelled to produce them or account for their absence, are stated in Burkhurst's case, 1 Rep., 1. Where land is sold without warranty, or with warranty only against the feoffor and his heirs, the purchaser shall have all the deeds, as incident to the land, in order that he may the better defend it himself. But if the feoffor be bound in warranty and to render in value, he must defend the title at his peril, and the feoffor is not to have custody of any deeds that comprehend warranty of which the feoffor may take advantage. A purchaser at a sheriff's sale may give copies in evidence where it is necessary to deduce the title of him whose land was sold, because he is only privy in estate, and is not supposed to have custody of the original.
Cited: Irwin v. Cox, 27 N.C. 523; Harper v. Hancock, 28 N.C. 127; Cowles v. Hardin, 91 N.C. 233.