Both parties claim the property in controversy through J. C. Camp.
The appellants claim through a judgment rendеred in their favor against a firm of which Camp was a member.
In the cause in which that judgment was rendered an attachment was levied on the property, January 4,1883, which was subsequently foreclosed and the property bought by the аppellants at sale regularly made under the judgment.
The defendant claims through the following deeds:
1st. Dеed from J. C. Camp to Sorrell, dated September 25, 1882, recorded January 6, 1883.
2d. Deed from Sorrell to W. C. Chatham, dated Jаnuary 1,1883, recorded January 6, 1883.
3d. Deed from Chatham to Carpenter, dated June 26, 1883, filed for record same day.
4th. Deed from Carpenter to defendant, dated September 27, 1883, filed for record September 28, 1883.
The defendant offered in evidence all the original deeds above mentioned except the deed from Carpenter to himself, and of this a certified copy was offered, which was objected to on the ground, among others, that the non-production of the original was not sufficently aсcounted for by the affidavit made and filed by the attorney of the defendant.
The affidavit made by the attorney, аfter describing the deed, states: “ That he cannot procure the original, and that he has tried and done all hе could to procure it, and said deed describes the land sued for in this case.”
This affidavit made by the agent was manifestly insufficient. Butler v. Dunagan,
It is true that during the progress of a civil aсtion, if it becomes necessary to make an affidаvit, it may be made by a party, his agent or attorney (R. S., 5); but in matters of this kind “The affi
The judge wrho tried the cause found that at the time the attachment, through which the appellants claim, was levied, Chatham was in possession of the property, claiming it under the deed made to him by Sorrеll.
The evidence justified that finding, and this fact existing, constituted nоtice of his title to the property at the time the attachment was levied.
There was, then, an outstanding valid title in Chatham, through whom the defendant claims the property, of which appellants had notice at the time thеir attachment was levied; and this constitutes a comрlete defense to the plaintiffs’ action, whether the defendant has acquired that title or not; hence, the erroneous ruling of the court, in reference to thе admission of the certified copy of the deed tо the defendant, is of no importance; for the result of the suit, as to the plaintiffs, would have been the same had the court excluded the certified copy. The judgment is affirmed.
Affirmed.
[Opinion delivered May 19, 1885.]