This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
(y) And death may, for this purpose, be presumed after 30 years: Doe v. Michael, (1851) 15 Jur. 677; 17 Q. B. 276.
(z) Scriven, 7th ed. 488; Wynne v. Tyrwhitt, (1821) 4 B. & Ald. 376; inf. pp. 322, 323.
(a) Breeze v. Hawker, (1844) 14 Si. 350; and see the Evidence Act,. 1857, s. 14.
(b) Scriven, 7th ed. 487; and see Doe v. Freeman, (1844) 12 M. & W. 844; and examined copies, not signed by the steward, do not require stamps: 8. C.
(c) Re Airey, 1897, 1 Ch. 164.
(d) See cases cited in Smart v. Sandars, (1848) 5 C. B. at p. 917, n.; 17 L. J. C. P. 258; Sag. 14th ed. 417; Scriven, 7th ed. 87, 88.
(e) See ss. 126 and 127 of the L. P. Act, 1925, which take the place of ss. 8 and 9 of the C. A. 1882.
(f) Doe v. Caperton, (1840) 9 C. & P. 112.
(g) Beaumont v. Jeffery, 1925, 1 Ch. 1.
Documents abstracted, except those of record, must be proved by the production of the originals, if not lost or destroyed (h). Applying the rules of evidence applicable to judicial proceedings, it appears that the purchaser is entitled to call for evidence of the due execution of deeds by the attesting witness or one of the attesting witnesses (i) where the deed is one requiring attestation (k). In practice such evidence is not usually called for where the deed is produced from the proper custody (l). No such evidence can be required where the deed is thirty years old (m) and, coming from the proper custody, is free from suspicion (n); where it has been attested pursuant to a rule of Court, and the Court has subsequently acted on it (o); where the witness or witnesses are dead or by reason of insanity or otherwise are legally or physically incapable of being produced (p); and where the deed is under the seal of a corporation (q) or is made valid by reason of enrolment. Under the Criminal Procedure Act, 1865 (r), it is not now necessary to prove by the attesting witness any instrument to the validity of which attestation is not requisite; such instrument may be proved as if there had been no attesting witness thereto.
Proof of deeds by production of originals.
Proof of execution.
(h) Sup. p. 141. As to mutilation of deeds and defects in the stamps, etc, inf. pp. 323, 324. (i) Laythoarp v. Bryant, (1835) 1 Sc. 327.
(k) See s. 7 of the Criminal Procedure Act, 1865.
(I) I.e., a place where it may reasonably be expected to be found, though not necessarily the most proper place of custody; Croughton v. Blake, (1843) 12 M. & W. 205; 13 L. J. Ex. 78; Doe v. Phillips, (1845) 8 Q. B. 158; and see Taylor, 11th ed. pp. 452 - 455.
(m) Taylor, p. 1244. Lord St. Leonards seems to think that it is sufficient, in the absence of special circumstances, on the sale of freeholds, under the special circumstances, a plain copy would have been admissible (x): so, an attested copy of a settlement dated in 1693, produced from the proper custody, and according to which possession of the estates had gone for many years (y). Examined copies of the enrolment of deeds required by law to be enrolled are, it appears, sufficient evidence of the originals; but, where the enrolment is not compulsory, a copy is evidence only as against the parties on whose acknowledgment enrolment was made, and their representatives (z): and the non-production of the original should be accounted for. The enrolment or an examined or certified copy of the enrolment of any deed, executed under the provisions of the Acts relating to the Duchy of Cornwall, is sufficient proof of the contents and due execution of the original, though its non-production is not accounted for (a): so, too, the office copy of an enrolled bargain and sale (b), or deposited power of attorney (bb), suffices.
Where the loss or destruction of a deed can be proved (s), secondary evidence, which should be clear and the best available (t), may be given of its contents; but proof must also be given of its due execution and delivery (u): an attested copy, however, taken and kept for 110 years in a public office, of a lost deed, was admitted as sufficient evidence of the original; and it was intimated that, to prove the due execution of the conveyance of the fee to the vendor: Sug. 14th ed. 439; see Thompson v. Miles, (1794) 1 Esp. 184; Nash v. Turner, ib. 217; but see also Crosby v. Percy, (1808) 1 Camp. 303; Man v. Ricketts, (1844) 7 Beav. 93; Doe v. Michael, (1851) 17 Q. B. 276; 15 Jur. 677; the rule applies to a registered memorial, see Miller v. Wheatley, (1890) 28 L. R. Ir. 144.
Proof where deed is lost or destroyed: by attested copy of old deed.
(n) Roe v. Rawlings, (1806) 7 Ea. at p. 291; Taylor, p. 94.
(o) Bailey v. Bidwell, (1844) 13 L. J. Ex. 264; Streeter v. Bartlett, (1848) 17 L. J. C. P. 140.
(p) See Taylor, 11th ed. p. 1234.
(q) Sed qu., see Moises v. Thornton, (1799) 8 T. R. at p. 307; S. v. Bathwick, (1831) 2 B. & Ad. at p. 648, per Lord Tenterden; Doe v. Chambers, (1836) 4 A. & E. 410; 5 L. J. N. S. K. B. 173.
(r) lb. s. 7; the Act is not restricted to courts having criminal jurisdiction, s. 1.
(s) As to what evidence of loss is sufficient, see Green v. Bailey, (1847) 15 Si. 542; Fitzwalter Peerage, (1844) 10 C. & F. 953; Hart v. H., (1841) 1 Ha. 1; Stubbs v. Sargon, (1841) 4 Beav. 90; Doe v. Lewis, (1852) 11 C. B. 1035; R. v. Saffron Hill, (1852) 1 E. & B. 93; Abbott v. Geraghty, (1853) 6 Ir. Jur. 49; Parr v. Lovegrove, (1857) 4 Dr. 181.
(t) Re Halifax Commercial Bank and Wood, (1898) 79 L. T. 536.
(u) Re Halifax Commercial Bank and Wood, sup.; Bryant v. Busk, (1827) 4 Russ. 1; Southby v. Hutt, (1837) 2 M. & C. 207; 1 Jur. 100; see Doe v. Brydges, (1843) 7 Sc. N. R. 339; 13 L. J. C. P. 209.
Examined copies of enrolled deeds, when evidence.
The recital of a deed is evidence of its existence as against all parties executing the deed containing the recital, and those claiming under them, but is no evidence of its contents or effect beyond what its name and nature necessarily imply, unless proof is given of its loss or destruction (c). There are, however, exceptions to this rule in the case of ancient documents purporting to confer possession, from which the law has always permitted the inference to be drawn that such possession was had (d). Where possession of an estate has been held for many years under a deed the validity of which depends on the terms of an alleged prior deed or will which cannot be produced, the recital in the deed under which possession is held of the alleged document may be sufficient evidence of its contents and execution (e); and by s. 45 (6) of the L. P. Act, 1925 (re-enacting s. 2 of the V. & P. Act, 1674), recitals-, statements, and descriptions of facte, matters, and parties, contained in deeds, instru-mente, Acts of Parliament, or statutory declarations, twenty years old at the date of the contract, are sufficient evidence in the absence of proof to the contrary (f).