— Stephens J.
By the Court.
delivering the opinion.
Was the deed offered by plaintiff from Stanford to Gunby, properly rejected? Delivery being an essential part of a deed, no paper can go as a deed without proof of delivery. There was no proof of it here. Delivery eould not be inferred from possession either of the land or the paper, for it did not appear that either had ever been in the possession of plaintiff or those through whom he claimed, the paper offered being a copy, and not an original. The copy, to be sure, *48was in possession of the plaintiff, but the copy did not purport, even to be the paper which was delivered, and the copy proved nothing as to the original. Indeed, the copy was not and could not be evidence at all, except by virtue of proof that it was a true transcript from the original, which original had first to be proven. Now was the original proven by the record, or rather by the Clerk’s certificate of record ? We hold not, because the record if made, as the certificate represented it, was not made on legal probate, and so passes for nought. The affidavit on which the record purports to have been made, merely states that £ he witness saw Stanford “ assign,” by which of course he meant sign. There is no statement in the affidavit touching delivery. There was nothing to authorize the Clerk to make a record. The record of a deed when made upon the proper official attestation, or proper affidavit of a subscribing witness, is sufficient proof of the execution of the deed, including delivery, but when made without this foundation, is nothing at all. So far from proving the execution of the deed, it don’t prove even that there was such an original paper. It is no evidence. A record, unless made in pursuance of law, is mere hearsay. The execution of the deed not being proven, the paper was properly rejected.
[2.] As to the charge. This Court has held before, and we adhere to the doctrine, that in ejectment there can be no recovery of the premises on a demise from a lessor who is dead at the time of trial, but there may be a recovery of costs by plaintiff on such a demise, provided the lessor were living at the commencement of the suit. We think this is the instruction which should have been given to the jury, instead of the unqualified charge that there can be no recovery on a demise from a lessor who is dead.
I udgment reversed.