Majority
p. 671[No. 4,576.] JOHN N. TAYLOR v. L. B. CLARK et al. The Court erred in allowing the defendants to prove the contents of the alleged lost bill of sale from King to Clark, against the objections of the plaintiff. The defendants had not shown that such a paper ever really existed, in that they had not shown the deed or any execution of an original, or
Headnote
Paeod Evidence of Contents of Deed.—Before parol evidence can be introduced of the contents of a deed which is claimed to be lost, it must be shown that an unsuccessful search has been made for it in the place where it was last known to have been.Appeal from the District Court, Tenth Judicial District, County of Tuba.
Ejectment to recover nine twentieths undivided in certain mining claims in Tuba county. Both parties claimed title under Lyman King. The plaintiff proved by King that he owned the demanded premises, and went into possession of the same prior to 1860. He then introduced a deed to him from King, dated January 4, 1866. The defendants called as a witness one of their number, L. B. Clark, who testified that King sold him the demanded premises and gave him a written conveyance, in April, 1862, and that the conveyance was lost; that he did not know the conveyance was lost till December, 1865, when he looked through all his papers, safe, pigeon-holes, and house for it, and could not find it, and that he sold to the Pittsburgh Company, in December, 1865, and delivered to the Company all his papers. The defendants constituted the Pittsburgh and Tuba Eiver Mining Company. The defendants then offered to prove the contents -of the conveyance, but the plaintiff objected because its loss had not been shown, and that no foundation had been laid for the same. The Court overruled the objection, and permitted evidence of its contents to be introduced.
The defendants recovered judgment, and the plaintiff appealed.
G. N. Swezy and Chas. E. Filkins, for the Appellant.
p. 672copy of the same. They had not shown the loss of such instrument (if any existed), or properly accounted for the same.
W. C. Belcher and J. O. Goodwin, for the Respondents.
The Court below erred in permitting parol proof of the contents of the alleged written transfer by King to Clark, claimed to have been made in April, 1862. The search for this paper made by Clark was first made by him in December, 1865; the particular day of that month upon which the search was made is not stated. Clark sold to the Pittsburgh Company in that month, and testified that he then delivered all his papers to that company.
The defendants should have shown an unsuccessful search among the papers of that company before resorting to parol proof of the contents of the lost paper.
Judgment reversed and cause remanded for a new trial.