Smith v. Phillips

25 Mo. 555 | Mo. | 1857

Richabdson, Judge,

delivered the opinion of the court.

The best evidence of which the case is susceptible must be produced, and evidence is never primary when it carries ou its face the indication that better exists. The law requires a sheriff, when he sells real estate under execution, to execute, acknowledge and deliver a deed to the purchaser, on complying with the terms of sale ; and whenever title is asserted under a sheriff’s sale, the production of a deed is required or' its absence accounted for as a preliminary to the introduction, of secondary evidence of its contents. The copy from the! record of the sheriff’s acknowledgment was read by the defendant, to prove that a deed had been made to Bird ; but it. indicated on its face the existence of better proof of the fact, sought to be established by it; and the most that could be claimed for it was, that it was secondary evidence, which was inadmissible in any aspect of the case, without proof of the previous existence and loss of the deed.

Whether there are degrees in the various kinds of secondary evidence, it is not important to discuss, nor to decide whether, admitting the previous existence of a deed from the sheriff and its loss, the record entry read by the defendant was the best evidence of its contents ; for no foundation was laid for the introduction of secondary evidence of any kind or in any degree. The testimony of the witness that he had heard that Logan had purchased the land in controversy from Bird was also improperly admitted, and for these reasons the judgment, with the concurrence of the other judges, will be reversed and the cause remanded.