The opinion of the court was delivered by
Mr. Justice Gaby.
The above entitled action was commenced on the 15th day of February, 1893, by Martha Hobbs, Henry Beard, and Samuel Beard, for the possession of the whole of certain premises situated in the city of Columbia. Before the trial of the cause, Samuel Beard died, and his heirs at law, Frank Beard, Eugene A. Beard, and Henry E. Beard, were, by an order of the court, substituted in his stead as coplaintiffs of the said Martha Hobbs and Henry Beard.
It is set forth in the complaint that the plaintiff's, as tenants in common, are seized in fee and entitled to the immediate possession of the said premises; that the defendant is in the possession thereof and withholds the same from them, notwithstanding demand made therefor. In addition to these facts, the manner in which the plaintiffs claimed to have derived title is set forth, in substance, as follows: That one Mary Anne Wolfe, being the common source of title of the plaintiffs and defendants, executed a deed whereby she conveyed the said *376premises to one James L. Beard for life, with remainder, after his death, to the children of Thomas Beard, in fee simple, who should be alive at the falling in of the said life estate; that the said James L. Beard departed this life on or about the day of January, 1893, and that the plaintiffs are the remaindermen under the said deed. The defendant, by her answer, interposed a general denial of all the allegations of the complaint, and pleaded title by presumption of time and the statute of limitations.
After introducing testimony to show the loss of the deed alleged to have been executed by Mary Anne Wolfe, conveying a life estate to James L. Beard, the plaintiff undertook to prove its existence and contents by the declaration of James L. Beard, contained in a letter alleged to have been written by him while in possession and control of the said premises; by the oral declarations of the said Mary Anne Wolfe, and by the evidence of the record of the deed in the office of the B. M. C. of Bichland County, which record was destroyed by fire years ago. This evidence was held to be incompetent by the presiding judge, whereupon the plaintiffs introduced testimony to show the following facts: That the possession of the said premises by Mary Anne Wolfe continued over a period of more than twenty years; that the possession of James L. Beard commenced immediately thereafter and was connected therewith; that James L. Beard made the admission, during the continuance of his possession of the said premises, in his deed thereof to Frances Beard, to the effect that he had only a life interest in the same; that the said deed of James L. Beard conveyed his life interest to Frances Beard, the defendant, and the possession of Frances Beard commenced immediately after and was connected with that of the said James L. Beard; the death of the said James L. Beard and of Mary Anne Wolfe, and that the plaintiffs are some of her heirs at law.
At the close of plaintiff’s testimony the defendant made a motion for a nonsuit, which his honor refused. It seems to be an undisputed fact that James L. Beaid derived his title from Mary Anne Wolfe. The defendant, to establish her title, introduced testimony of long possession in James L. Beard, con*377tinuing over forty years to the time of his death in 1893, and various acts of ownership during that time. His honor then charged the jury as will appear in the report of the case. The jury rendered the following verdict: “We find for the plaintiffs, Henry Beard and Martha Hobbs, each, one-sixth of the land in dispute; another one-sixth for Frank P. Beard, Henry E. Beard, and Eugene A. Beard, heirs at law of Samuel Beard, deceased.” Judgment was entered up in accordance with the said verdict on the 1st day of May, 1891. The plaintiffs and defendant both appealed from said judgment, upon exceptions which will be set out in the report of the case.
1 We will now consider the plaintiffs’ exceptions in regular order. 1st. In the case of Sims v. Jones, ante, 91, the court says: “Where the rulings of the Circuit Judge are brought in review before this court, two things must appear: (1) that the ruling to which exception was taken is erroneous; (2) that the appellant has suffered prejudice by such erroneous ruling.” The letter mentioned in the first exception is not set out in the “Case;” and plaintiffs’ attorneys, no doubt, realizing the difficulty under which the court would labor in undertaking to pass upon this exception without knowing the contents of the letter, have incorporated in their written argument before this court such parts of said letter as they supposed were material for our consideration. This court can not, however, consider any facts not appearing in the “Case.” It is true, that in the argument upon Circuit plaintiffs’ attorneys stated a part of the contents of such letter, but while not doubting for a moment the correctness of that statement, it can not be regarded as evidence in the case. This exception is, therefore, overruled.
2 2d. The second exception relates to the testimony as to the record of the deed. The witness, Henry G. Guerry, testified: “I had a conversation with James L. Beard about the property in dispute about the year 1852 or 1853, and he offered to sell me the premises. I then examined the records in the B. M. C. office Bichland County, and found that the property was entailed.” Upon objection being made to the witness testifying as to the records, his honor said: “I was inclined to allow secondary evidence on the showing submitted, *378but T can not allow this witness to speak of what he saw in the books in the B. M. C. office. The only way a record of that court can come into this court at all is by the mode provided by law, which is that a notice so many days before hand shall be given to produce the paper, and in case of non-production, use the office copy. If that boob itself were here to-day, it would be no evidence in regard to the contents of that deed; there must be a notice that you intend to introduce it, and you are confined to that notice. I have had books brought in and ruled out. If you can’t prove by the books themselves, I don’t see how you can prove it by a witness who saw that book.” It will be observed that his honor did not reject the testimony because he was not satisfied with the showing made that the deed was lost. The .loss of a paper is always a preliminary question addressed to the discretion of the presiding judge, and his ruling is not ordinarily the subject of review by this court. The presiding judge ruled the testimony incompetent on other grounds, however, that can be reviewed by this court.
3 As a general proposition, the rule announced by the presiding judge is correctly stated. This case falls under a different rule, because the record of the deed has been destroyed by fire. The offer of testimony was not intended as an attempt to comply with the requirements of the statute as the introduction of an office copy of the record, but as the best evidence, though secondary, of which the case in its nature was susceptible. If the presiding judge had ruled that the plaintiffs had it in their power to produce a higher degree of evidence than that offered, this being a preliminary question, could not have been considered on appeal, unless it appeared that the discretion of the presiding judge had been abused. No objection was made to the testimony on this ground, and it was not rejected by the Circuit Judge on such ground.
After proof of the loss of a deed, the next step is to prove its existence, then its contents. State v. McCoy, 2 Speer, 714. Section 818, Rev. Stat. (1893), provides that: “Before any deed or other instrument in writing can be recorded in this State, the execution thereof shall be first proved by the affidavit of a subscribing witness to said instrument, taken before some of*379ficer within this State competent to administer an oath.” It thus appears, that before a deed can be recorded, its execution must have been proved in the solemn manner just stated. The fact, therefore, that the deed was recorded, after its execution had, necessarily, been proved as required bylaw, was evidence of the existence of the deed. Culpepper v. Wheeler, 2 McMull., 68.
We will now consider whether the testimony should have been received to prove the contents of the deed. The question as to the loss of the deed, or that the plaintiffs could have produced better testimony, is not before us. The sole question, then, for our consideration is, whether, under the circumstances of this case, the testimony was competent to prove the contents of the lost deed. In the case of Hunter v. Glenn, 1 Bail., 542, the court says: “In general, any fact or circumstance which leads the mind to the affirmative or negative of any given proposition, constitutes proof; but when it is certain, or even probable, that more conclusive or satisfactory evidence exists, and is in the power of the party to produce, the mind is not satisfied with slight and doubtful circumstances, and hence the rule that the best evidence of which the. case is susceptible is always required. If a contract be in writing, and in the power of the party, that must be produced, because it is more certain than memory. For the same reason, it must be proved by the subscribing witness, if there be one. If there be none, then proof of the handwriting is the next best. If the party whose handwriting is required to be proved is not accustomed to write much, and it is for that cause impossible to prove it, other circumstances would be admissible; but for the reason before given, to let in inferior proof, the party offering it must show that no higher is in his power.” See, also, Riggs v. Tayloe, 9 Wheat., 483; Renner v. Bank of Columbia, Ibid., 581; Winn v. Patterson, 9 Peters, 663; Greenl, Evid., § 84, and note, and § 558. If his honor was satisfied that the deed was lost, and that the plaintiffs did not have it in their power to produce higher evidence than that offered by them as to the contents of the deed, then the testimony was competent, and the witness should have been allowed to testify what the record of the deed contained. This exception is sustained.
*3804 3d. Ifc seems that the declarations of Mrs. Wolfe, mentioned in the third exception, were made after she had conveyed the land and surrendered possession. Her declarations were, therefore, inadmissible. Renwick v. Renwick, 9 Rich., 53; McCord v. McCord, 3 S. C., 577. The third exception is overruled.
5 We come now to a consideration of the defendant’s exceptions. The first complains of error on the part of the Circuit Judge in refusing the motion for a nonsuit. Thefollowing appears in the “Case:” Mr.McMaster made amotion for nonsuit upon the ground ‘that plaintiffs had failed to prove that any deed was ever in existence, and that they are not suing as heirs at law; if they are suing as heirs at law, the proper parties are not before the court; that the plaintiffs’ whole case depends on the transfer of title, and defendant holds title and possession.’ The Court: They have proved a long possession, over twenty years, by Mrs. Mary Anne Wolfe, and that these parties are some of the heirs at law. Mr. McMaster: They have proved that Mrs. Wolfe died in 1850. The Court: How long does this witness say that Mrs. Mary Anne Wolfe was in possession? Mr. Crawford: From twenty-five to fifty years. The Court: As I understand it, twenty years proves a grant from the State. I have, on motion of the defendant, ruled out every thing showing that Mrs. Wolfe ever made a deed; now we are faced with this proposition, that Mrs. Wolfe was in possession of that land, and is presumed to have title, a grant from the State by virtue of her twenty years’ possession, and that these plaintiffs are her heirs at law. Any question of limitation in this matter of defence I cannot rule upon now. I refu.se a nonsuit.” This court is satisfied that the motion for a nonsuit was properly refused, and the first exception is, therefore, overruled.
6 In regard to the requests to charge mentioned in the other exceptions, the Circuit Judge said: “There have been a good many requests to charge submitted, but in the view I take of it, I propose to charge you generally, without saying any thing about them; if I am in-error, the error can be corrected as well that way as any other.” To determine *381to what extent the presiding judge refused said requests would require a critical examination of the entire charge, which we think is unnecessary, as the case must be remanded for a new trial on another ground. The defendant’s attorneys also gave notice that they would in the argument of the cause on appeal endeavor to sustain the rulings of his honor as to the admissibility of the testimony of Guerry and Henry L. Beard, on the further ground that said testimony was incompetent under section 400 of the Code. Waiving all objection as to the form of this notice, it is sufficient to say that no such objection was made on Circuit.
It is the judgment of this court, that the judgment of the Circuit Court be reversed, and the cause remanded for a new trial.