Pollard v. Melvin

| Superior Court of New Hampshire | Jul 15, 1840

Upham, J.

The whole question raised in this case is as to the competency of the office copy of the deed offered by the respondent. This evidence was introduced to show a conveyance by the mortgager of his equity of redemption of the land to one Luther Kenney, on the 13th of November, 1837, which was some months prior to the petitioner’s attachment and the sale to him of the equity of redemption of the same on execution. If this evidence of the prior sale was good, the petitioner, under the testimony offered, of course had no right of redemption.

Some authorities have been cited to show that an office copy of a deed, under the circumstances of this case, is competent testimony. On examination of the cases, however, they go merely to sustain what has long been the settled practice in this state, that where various deeds are used, in a chain of title under which the parties to the suit set up their claim, the execution only of the last and original deed in the hands of the party is required to be proved, and office copies of the previous deeds are received as competent evidence.

Courts have come only by gradual steps to this decision. In the case of Eaton vs. Campbell, 7 Pick. R. 10, an office copy was holden to be competent evidence where the grantor was without the commonwealth, and the original deed was not under the control of the party producing the copy, and where a subsequent deed immediately to himself had first been proved.

The case of Hathaway vs. Spooner, 9 Pick. R. 23, is to the same point. The case of Scoulan vs. Wright, 13 Pick. R. 523, goes farther than the previous cases. This was a petition for partition. The original deed to the petitioner was proved, and an office copy of the next previous deed in the chain of title was offered. The counsel for the respondent objected to the office copy, for the reason that as the deed was a recent deed, and the grantee was within the jurisdiction of the court, a registry copy was not competent evidence ; and cited, as his authorities on this point, the two cases above referred to. But the court overruled the objection. They say that the copy of a deed from the registry is good evidence prima facie, and dispenses with the necessity of the production and proof of the original deed, except where a grantee relies on the immediate deed to himself, or where, from the nature of the conveyance, the deed is presumed to be in his own custody or power.

This case is fully sustained by the decision in Woodman vs. Coolbroth, 7 Greenl. R. 181.

In the case, Tucker vs. Welch, 17 Mass. R. 160, which has not been cited by counsel, an office copy of a deed was admitted under the same circumstances as in the present case ; but Parker, C. J., says, the execution of the deed was not denied upon the trial, nor the fact that such a conveyance was made as was attempted to be proved by the office copy. He intimates an opinion that if the copy had been objected to on the trial, it would have been inadmissible ; but this case was not referred to in the subsequent decisions, and it does not seem to have been considered as settling this question.

The admission of an office copy of a deed in any case is a departure from the ordinary rules of evidence. It has as yet been holden to be admissible in this state only in a chain of title, where due proof has first been made of the execution of the last conveyance. Where such deed has been duly proved,the previous conveyances connecting with it may be sustained by office copies, as prima facie evidence. To this extent we are prepared to go, and no further ; and such we think to be the true limitation of the authorities.

In the case before us, evidence was offered of title in a third person. Neither party claims under this third person, or has custody of the deed. A mere office copy, connected with no other conveyance, is offered to defeat the title previously duly made out by the plaintiff.

The admission of an office copy in such a case is extending the rule of evidence beyond what has been heretofore established. It is not sufficient for the defendant to say that he has no control over the original deed, and is therefore compelled to rely on secondary evidence. He has as much control of the deed as the plaintiff: the deed is foreign to either title, and the burthen of proof of its due execution should rest on the party using it. The person holding the deed may be summoned to produce it; or, if it is lost, secondary evidence can then be introduced. The office copy was, therefore, properly rejected, as incompetent evidence under the facts of the case, and the motion to set aside the verdict does not prevail.