Hurn's Lessee v. Soper

delivered the opinion - of the court ’ This case comes before us on three bills of exceptions. The first presents the question, whether the enrolment of a deed of bargain and sale, is competent evidence of title, to lands in the trial of an action of ejectment, or whether tire original must be produced? The court before whom the cause was tried, decided that it was, and that the original need not be produced; and it is certainly too latent this day, to question the correctness of that decision. Copies' of deeds that are not required to be enrolled, cannot be admitted in evidence; but deeds of bargain and sale are, by the laws of the state, x-equired to be enrolled; and by the uniform tenor of the decisions of the courts of the state, exemplifications of records of deeds of bargain and sale, are as good and competent evidence as the originate themselves.

In admitting in evidence the enrolment of the deed for the premises in question, the court also decided, that the plaintiff in error, who claims under Harriet Tucker, one of the grantors, was not precluded from showing that it, was obtained by fraud; which led to the second and third bills of exceptions, in both of which we concur in opinion *281with the court below. Parol evidence of declarations by Harriet Tucker, made after the date of the deed, of her intention to dispose of the same land by will, and that she had made a will, written by the defendant, the grantee, which she afterwards destroyed, offered for the purpose of showing that she was ignorant of the contents of the deed, and that it was obtained by fraud and imposition, was clearly inadmissible, and properly rejected by the court. If such testimony could be received, it would lead to the most pernicious consequences, and would be to overturn the best established principles of evidence; it would be to make every man a witness for himself in his own case; for if one claiming as heir at law to a grantor, (which is the predicament of Harriet Hum in this case,) could be permitted to resort to such testimony, to defeat the title of the grantee, why might not the grantor himself, under whom the heir at laW comes in? And the samO' principle would equally apply to all cases. Wlmt security would a deed furnish to a grantee, or of what avail would be the solemnity of recording a deed, if the subsequent declarations of the grantor, that he intended to dispose of the same land by will, (which declarations might be falsely made for the purpose of begetting the impression that he was ignorant of the contents,) could be received to impeach the deed on the ground of fraud? Besides, Harriet Tucker was the wife of Zachariah Tucker, the other grantor in the deed; and who would purchase land of a husband, holding in right of his wife, if the wife’s subsequent declarations could be admitted in evidence to defeat the deed? ■With respect to the parol evidence that was offered, to prove the contents of the supposed will, as no foundation could be laid, by the declarations of harriet lucker, for letting in such testimony, it was necessarily rejected.

If a subsequent will of Harriet Tucker, making a disposition of the same land, and written by Soper himself, the grantee, had actually been produced at the trial, instead of her declarations, it might have had an effect upon the cause; but as no such will was produced, we forbear to say any thing on the subject. The whole, of the evidence set out in the third bill of exceptions, was expressly-offered for the purpose of showing, that the deed from Zachariah and Harriet Tucker to Soper, the defendant, was fraudulently obtained, and was all suffered to go to *282ihéjúrj,'as the propel* tribunal to determine the qutesticrii of fact.

The application to the court, therefore, on the part of the plaintiff, to instruct thé jury, that if they should believe the deed was riot given for a riionéy consideration, it tvas inoperative as a dééd of bargain and sale, was an attempt to obtain the opiriiori of the court; on an abstract proposition, not founded úpón ány legal evidence in the cause directed to that point; but immediately, in thé téeth óf the .deed, which séts out a monéy consideration, and which, parol évidence, if directly offered for the purpose bf showing a different consideration; could not properly have been received to contradict.

JUDGMENT AFFIRMED.