CHAPTER XXII. OF THE EVIDENCE BY WHICH ABSTRACTS OF TITLE SHOULD BE SUPPORTED. HAVING now discussed the principal rules relating to the preparation and examination of abstracts of title, and mentioned the most usual defects which occur in them, it will be proper to consider the evidence by which they must be supported; for it is obvious that, however valid or complete a title may be in reality, yet, if the proof of this be defective, it will be greatly deteriorated in value, and, in fact, unmarketable. It will always be necessary, therefore, to see that an abstract is supported by the proper evidence of the various documents and facts which it contains or refers to, or which are necessary to its validity. A title must be such as may be successfully defended in a court of justice; and the rules of evidence there adopted must be strictly resorted to, in order that the proper proofs of the title may be at all times at the command of the purchaser. And although a pur chaser may be well satisfied of the truth of the matter to be proved, he should always insist on the proper evidence of them, because a subsequent purchaser may demand that they should be proved; and this is the more necessary, as, after once completing his purchase, he can seldom demand further evidence from the vendor. This principle has been discussed in a recent case, in which the circumstances were as follow:--The partners in a banking-house having agreed to take a new partner into the firm, made arrangements for liquidating their debts, and indemnifying the incoming partner; and one of the old partners, Nathaniel Middleton, in pursuance of this arrangement, conveyed considerable real estate to trustees upon certain trusts; one of which was, that in case the then existing debts of the old partnership firm should exceed forty thousand pounds, the trustees were to make an absolute sale; and there was a declaration that the trustees' receipts should be sufficient discharges. In 1807, N. Middleton died, leaving his son, H. N. Middleton, his heir at law. In 1809, the trustees sold and conveyed the estates to Hallett; and under the supposition that N. Middleton died intestate, H. N. Middleton, his son and heirat law, joined in the conveyance, and covenanted for title against all persons claiming under his father and himself, and also for further assurance. After the completion of the purchase, a will of N. Middleton's was discovered which rendered it doubtful whether his resulting interest in the estates vested in the trustees was not devised from the heir at law. It became important therefore to Hallett to have actual evidence of the fact of the debts exceeding forty thousand pounds, which was recited in his purchase-deed ; and he accordingly filed a bill to enforce the production of such evidence; Lord Gifford, M. R., however dismissed the bill with costs, and observed that the purchaser, having admitted the correctness of the recitals at the time of the purchase, and not having set up any charge of fraud, could not enforce the production of farther evidence. He found no case in which a purchaser, after taking a conveyance from an heir at law, by deeds which set forth the pedigree of the vendor, had filed a bill stating that there are various books, family bibles, &c., containing entries which prove the pedigree as recited, and insisting, on that ground, that these books should be delivered up to him. If he was satisfied with the correctness of the recital at the time when he took the conveyance, he could not afterwards call for proof of its accuracy. (a) A court of equity will not oblige a purchaser to take a title which depends on a matter of fact that either does not admit of satisfactory proof, or is not satisfactorily proved. (b) But in considering whether a fact is satisfactorily proved, the doctrines of presumption will be ever present to the mind of the court. These rules will be fully considered hereafter; (c) it will be at present sufficient to observe, that where, in a court of common law, a judge would give a clear direction to a jury to find a particular fact, such fact will, in a court of equity, be considered as without reasonable doubt; but if the fact be such that a judge would leave it to the jury to pronounce upon the effect of the evidence, then the fact will be considered in a court of equity (a) Hallett v. Middleton, 1 Russ. 371. 243. (b) Smith v. Death, 5 Madd. (c) See Chapters XXIV.-XXX. as too doubtful to conclude a purchaser, and he will not be compelled to take a title depending on its proof. (a) We shall now proceed to discuss in detail the rules as to the evidence by which abstracts of title must be supported; and in order to do this the more accurately, we shall direct our attention to the following points. In the present chapter we shall endeavour, first, to show in what manner deeds, wills, acts of parliament, and the other ordinary contents of an abstract, must be proved; secondly, in what manner the facts on which the validity of a title depends must be proved; thirdly, we shall advert to the miscellaneous documents which are considered as legitimate evidences of title, and mention how they must be proved; and fourthly, the secondary evidence which may be resorted to in support of abstracts of title. We shall then consider, in subsequent chapters, the admissibility of parol evidence; the rules as to presumptive êvidence; the admissibilty of an unstamped instrument as evidence; and shortly mention where the production of an instrument may be compelled. I. OF THE EVIDENCE OF THE ORDINARY CONTENTS OF AN ABSTRACT. 1. Deeds. A deed cannot be given in evidence without proof of its execution; and the production of an instrument at a trial in pursuance of notice will not, in ordinary cases, supersede the necessity of proving it by one of the attesting witnesses. The (a) See Emery v. Growcock, 6 Madd. 57. principle on which deeds have sometimes been admitted in evidence, without proof of their execution, has been that the party producing the deed claimed under it. (a) A deed thirty years old proves itself, and it is not necessary to call any attesting witnesses to prove it ; and when other documents of equal antiquity are produced from the proper custody, no proof of handwriting is required. (b) But if a deed be dated at a later period than thirty years back, it must be proved before it can be given in evidence, and for this purpose the subscribing witness must be produced; and if there be two or more subscribing witnesses, one will, in ordinary cases, be sufficient to prove the execution. If there be a subscribing witness, a stranger cannot give or add his attestation. If the witnesses be dead, all their deaths and hand-writing must be proved; and the authenticity of their signatures proves the circumstances of the execution which they profess to attest. When the witness is abroad, it is usual, and seems necessary, to prove the hand-writing of the grantor as well as the witness; and this is expressly required by the Stat. 26 Geo. III. (c) as to deeds ex (a) Doe d. Tyndale v. Heming, 6 B. & C. 28; 9 Dow. & Ry. 15. Pearce v. Hooper, 3 Taunt. 60. Gordon v. Secretan, 8 East, 549. Orr v. Morice, 6 J. B. Moo. 347; 3 Brod. & B. 139; but see Jackson v. Allen, 3 Stark. 74; in which case plaintiff's counsel having called for a deed which was not produced, and having then proved that it was in defendant's possession and the usual notice to produce, then offered to prove a true copy of it. Defendant's counsel then produced the original deed, and insist- 376. (c) c. 57. s. 38. |