Andrews v. Davison
17 N.H. 413
Superior Court of New Hampshir...
1845
Check Treatment
Parker, C. J.

The deed from Gilchrist to "Wallace was in the chain of title under which the plaintiff derived his title, and if he had been tracing title in support of his *415action, the copy would have been admissible, notwithstanding it might have shown exceptions and reservations. It is equally admissible here, therefore, as either of the other copies, and the question is, whether an office-copy of a deed is admissible in evidence, without an attempt to prove the original, for any purpose except to trace and support a title to the party producing it? We are of opinion that the rule allowing a copy to be used is not limited to the case of a party using it in support or defence of a real action, but extends to cases where the party derives his claim of title under the deed, a copy of which is produced. 10 N. H. Rep. 554, Pollard v. Melvin; 11 N. H. Rep. 74, Loomis v. Bedel; 2 Aik. 329, Williams v. Wetherbee. In the first of these cases it is said that where due proof has first been made of the last conveyance, that is of the deed to the party himself, u the previous conveyances connecting with it may be sustained by office-copies as prima facie evidenceand in the second, that it is only when he claims titles through deeds which have been recorded, that he is entitled to offer copies in evidence, without an effort to produce the originals. The evidence in this case is sufficient under both these limitations of the rule.

There is no objection that the plaintiff' had not proved the deed to himself, upon a covenant in which this action is founded, and he claims his title,whatever he has, through the deeds of which he introduced copies. He is in privity with these conveyances, and entitled to the benefit of any covenants they may contain running with the land. But under our system of registry it is not usual for subsequent grantees to have the custody of deeds under which their title is derived, and they may resort to office-copies from the register’s office. It will perhaps express the rule, with technical precision, to say, that a party may give an office-copy, from the registry of deeds, as primá facie evidence in all cases where the conveyance is not immediately to *416himself, but he is in privity with the title conveyed by the deed.

’ On the execution of the deed from the defendant to the plaintiff, if there was any existing incumbrance upon the land the covenant against incumbrances was broken immediately, and the plaintiff was at once entitled to an action. But he could recover only nominal damages until he had sustained actual damages by the breach. 4 Kent Com. 471; 5 Conn. 497, Mitchell v. Warner; 4 Mass. 629, Prescott v. Truman; 17 Wend. 186, Norman v. Wells.

The matter set up in defence of the action which was thus brought against Cobleigh, it appears, was an incumbrance upon the land, by means of a reservation of a right to take off the timber, -which existed before the execution of the deed from the defendant to the plaintiff.

The defendant having had notice of the pendency of that suit, and of the defence set up, in order that he might come in and contest the right of Cobleigh must be bound by the verdict in that case establishing the existence of the incumbrance. He had an opportunity to come in and contest it, had he seen fit so to do. It was a suit in which one of the parties to the record was a party, and the other was vouched in, oi’, according to the modern practice, notified to come in and act as a party.

The remaining question is, whether the plaintiff is entitled to all the damages he has recovered. The charge of the court authorized the allowance of the counsel fees paid by the plaintiff in the former suit. Rickett v. Sugden, 9 Wend. 416, is a direct authority in favor of the recovery of counsel fees, as a part of the costs, where the action is against the grantee, and he is evicted. And the reason for the allowance of the costs appears to be the same where the title is tried in an action brought by the grantee, and the paramount title is set up by way of defence. 11 N. H. Rep. 36, Haynes v. Stevens.

Judgment on the verdict.