Stanley v. Addison

delivered the opinion of the court.

The plaintiff instituted suit, in which he seeks to be declared the true and legal owner of a lot of ground in the faubourg Lafayette, to which the defendants lay claim; one of them as legatee, and the other, as heir of the plaintiff’s vendor.

On the trial of the cause, in the District Court, judgment was rendered by default, against one of the defendants; and, against the other, on the plea of the general issue. From this judgment, both of the defendants appealed.

The attention of this court has first been called to a bill of exceptions, taken to the decision of the District Court, admitting a copy of the deed, under which the plaintiff claims, in evidence. Its admission was objected to, on the ground that, being an act under private signature, made by the grantor, its execution was not proved according to law; that the loss or destruction of the original instrument, was supported and proved entirely by hearsay evidence, and by one witness only, when the lot or property in contest is worth more than five hundred dollars.

The grounds stated in the bill of exceptions, on which this copy was admitted in evidence, are, that it was proved that the grantor had caused the original deed to be recorded. The evidence shows that the grantor requested a person, who also appears to be one of the subscribing witnesses to the deed, to prepare it; and that he executed it in the presence of that person and another subscribing witness, and the *210grantee, the present plaintiff After the deed was signed and witnessed, in the presence of the parties, it is shown that the person who drew up the instrument, advised the grantor to carry it to the office of the parish judge, and have it recorded, gmntor afterwards informed this person, he had destroyed the deed, whilst in a drunken frolic, and asked what the consequences of such an act would be, and was answered, that, as the deed was recorded, the destruction of it was . immaterial.

*210It has been contended in argument, and relied On by the defendants, in this court, that the judge a quo erred in admitting this evidence; because, the destruction of the ¿ee¿ wag only proved by a single witness, who testified to he heard others say; and, because the deed was not signed by the grantee, and that there was no evidence of his assent thereto,

. This court is of opinion, the district judge aid not err in this matter. The witness was not called to testify as to a contract, but to a fact, the destruction of a deed. He gave evidence of the confession or admission of the grantor, the person under whom the defendants claim. The absence of P1'00^ 0f the grantee’s having signed the deed, or of his assent thereto, ought not to have prevented its admission. The effect of the absence of this evidence, before the recording of ^le deed, was a matter of posterior consideration,

The deed being legally proved to hav e been unintentionally , ,11° 1 .. „ . . , J destroyed by the grantor, evidence of its contents results from ^ie declaration of the witnesses, and the copy given by the parish judge, of what is written and inscribed on his records. . , „ . . On this evidence, a jury, or the court of the first instance, may well have concluded, that the deed pnce existed, and that its contents were proved. If, however, the jury had come ^ °PP°site conclusion, this court would not have been bound to reject it; but, we are not to say that the judge erred in considering the deed as proved.

The deed acknowledges the receipt of the price, and the subscribing witness says, the consideration was a sum due . , 0 , . _ by the grantor, to the grantee. As a vendee incurs no *211obligation in an ordinary contract of sale, -except that of paying the price, which, in the present case, is .acknowledged to have been paid, it is clear, his signature was not needed to bind him. His assent might be proved aliunde. It may be inferred, in the present case, from his presence at the execution of the deed, and his subsequent claim under it.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.