The sufficiency of the preliminary proof by the plaintiff, to authorize secondary evidence of the contents of the lost deed, though argued here, does not appear to have been distinctly raised in the court below. But considering the point as duly raised upon the record, we think it was sufficient. The objections here made are, that Cook should have been examined as a witness, and that the execution of the deed should have been proved.

The testimony was, that the deed was left by the plaintiff, in his pocket book, in the law office of N. Cook, where he kept some of his papers, and that he and Cook had searched for it. It does not appear from this testimony, that Cook *483had the custody of this paper, it was left ill his office as a place of deposit, in the pocket book of the plaintiff, and it is not shown that Cook had any 'knowledge that the deed was even in his office. It is certainly true, that the evidence of the person in whose custody the lost instrument was last known to be, must be adduced, but the fact that the pocket book containing the deed, was left in Mr. Cook’s office, does not prove that he had the custody or possession of the deed. As to proof of the execution of the deed before giving secondary evidence of its contents, no such objection was made in the court below, and cannot therefore be made here.

As this was an instrument required by law to be recorded, and was in fact recorded — no presumption can arise, that the original was withheld for an improper purpose. [Jones v. Scott, 2 Ala. Rep. 58.] And in such a case much less stringent evidence will be required of the loss of the original, as there is no inducement whatever for withholding it. In our judgment, the preliminary proof was amply sufficient.

The objection to the answer in chancery is understood to be, that the execution of a deed cannot be proved by the admissions of the obligor. The deed in this case was made by one Holly, and the answer of the defendant admits that the copy exhibited with the bill was correct. If it had been his own deed, his answer would have been sufficient to prove its contents, the original being lost, and there being no subscribing witness to it. But being the deed of another person, as against himself, in such case as this, he certainly could admit both the contents and the execution of the deed, and this was the effect of his answer. The offer in evidence of the registry of the deed was entirely proper, though wholly unnecessary.

We come to the consideration of the charges of the court.

From the testimony it appears, that about the 16th March, 1844, the plaintiff agreed to sell the defendant a tract of land, and nine slaves. The terms of the contract were, that $560 was to be paid down, and the residue in three annual instal-ments, out of which certain debts due by one Holly, to the defendant, were to be paid. To secure the performance of this contract, the defendant agreed to execute a mortgage on the nine slaves. The money was paid to the plaintiff, and *484night having arrived, the parties separated, the plaintiff leaving with N. Cook, Esq. a bill of sale for the slaves, and a deed for the land, to be delivered to the defendant on his executing the mortgage according to the agreement.

That night, the defendant applied to the plaintiff to leave two of the slaves out of the mortgage, but he refused to do so, and said the contract was at an end, if he insisted on it. The next day the defendant returned to Cook and represented to him, that the plaintiff had agreed to leave two of the slaves out of the mortgage — the mortgage was accordingly executed on seven of the slaves, and the deed and bill of sale delivered up to the defendant. In about a month, the mortgage came to the hands of the plaintiff, who sent it to an agent to be presented to the defendant for his acknowledgement, so that it might be recorded. He declined acknowledging it, except on certain conditions. In July afterwards, the plaintiff in person, proposed to defendant, to acknowledge the mortgage, so that it might be recorded, and in that event offered “to make it his contract,” and gave him one day to consider of it. Defendant declined doing so, but upon certain conditions which he proposed, and to which the plaintiff refused to accede.

Both of the charges asked for, assume, that a contract had been consummated between the parties, but which the fraud of the defendant authorized the plaintiff to rescind. The first asserts, that the plaintiff slept too long upon his rights to be entitled to a rescission. The second, that he could not rescind without an offer to return the money he had received upon the contract.

However true these propositions may be, as abstract legal questions, they have no application to this case, as disclosed by the testimony. The receipt by the plaintiff of the $560, did not consummate the contract; its consummation depended upon the execution of the mortgage by the defendant upon the nine slaves, and upon this condition only, was the defendant to rceive from Cook the evidence of title to the property, as is explicitly stated by Cook in his deposition. Such being the contract of the parties, it cannot be varied by the fraud of the defendent in getting possession of the property. Nor can the rights of the plaintiff be affected by his subset *485quent gratuitous offer, to execute the contract, if the defendant would acknowledge the mortgage on seven, instead of nine of the slaves. This was not, as is erroneously supposed, an offer to rescind a contract previously made, but it was a proposition to make a new contract, which offer was accompanied by a protestation, that the defendant had not complied with the terms upon which he was to be let into posssession of the land and slaves. Considered, as in truth it was, an offer to make a new contract, instead of a proposal to rescind one previously made, it is obvious time is unimportant, and upon the refusal of the defendant to comply with the terms offered, each party was remitted to his original rights; the defendant to the money in the plaintiff’s hands, and the plaintiff to the land and slaves, which the defendant had fraudulently got possession of.

From this view it follows, that the court correctly refused the charges asked for, and its judgment is therefore affirmed.