40 Ala. 253 | Ala. | 1866
The transcript of the deed from John Falconer to William Maguire was offered in evidence by the plaintiff in the court below, with an agreement between the parties to the effect, that the copy of the deed, as set out in the transcript, might be regarded as an original paper of the same tenor and date; and that the certificate and endorsements thereon, as shown by the transcript, might be regarded as in the handwriting of G. H. Gibbs, who was, at the date thereof, the clerk of the circuit court for Montgomery county. This presents the question, whether the deed, as specified in the agreement, was properly admissible in evidence, without further proof, it having been relevant to the issue.
If its admissibility had depended upon the sufficiency of the certificate of acknowledgment, the authorities cited by the appellee are conclusive to show that it was properly excluded by the court; for the certificate is, neither in form
With the presumption, then, that the deed had been legally proved or acknowledged, and properly admitted to record, what was necessary to authorize the transcript to be received in evidence ? Section 1275 of the Code declares, that, “ if it appears to the court that the original conveyance has been lost or destroyed, or that the party offering the transcript has not the custody or control thereof,
In England, all tbe title-deeds to real estate go with tbe land to *he purchaser; (2 Sugden on Vendors, 90 ;) and it may be reasonable there to require tbe purchaser to produce tbe original deed to a prior grantee. There, no system of registration prevails, and tbe preservation of tbe title-deeds, by wbicb tbe estate has been transferred from hand to band, becomes of great importance. They are in tbe nature of beir-looms, and descend, together with tbe chests in wbicb they are contained, to tbe heir. — 4 Black. Com., book 2, p. 428. But here, tbe mode of conveyancing is different. Tbe grantee' generally tabes only tbe immediate deed to himself, relying on-the covenants of bis grantor, who is answerable to him on failure of tbe title; and on conveying to another, being liable over as warrantor, be has tbe right to retain in bis hands tbe immediate deed to himself, as a protection against claims for tbe recovery of tbe property wbicb might afterwards be attempted. — Eaton v. Campbell, 7 Pick. 10; Jackson v. Woolsey, 11 Johns. 446; Cocke v. Hunter, 2 Tenn. Rep. 113; Nicholson v. Hilliard, 1 N. C. Law Rep. 253; Thompson v. Ives, 11 Ala. 239, and authorities there cited; Hussey v. Roquemore, 27 Ala. 281; Shorter v. Sheppard, 33 Ala. 648. See, also, Scott v. Rivers, 1 Stew. & Port. 19.
My brethren concur in tbe setting aside of tbe non-suit on tbe ground first stated, but announce no conclusion as
Let the judgment of non-suit be set aside, and the cause remanded.