An exemplification of a grant of land under the great seal of
the State of Georgia is
per se evidence without producing
or accounting for the nonproduction of the original. It is a record
proof of as high a nature as the original. It is a recognition, in
the most solemn form, by the government itself of the validity of
its own grant under its own common seal, and imparts absolute
verity as a matter of record.
The common law is the law of Georgia, and the rules of evidence
belonging to it are in force there unless so far as they have been
modified by statute or controlled by a settled course of judicial
decisions and usage. Upon the present question it does not appear
that Georgia has ever established any rules at variance with the
common law, though it is not improbable that there may have been,
from the peculiar organization of her judicial department, some
diversity in the application of them in the different circuits of
that state, acting, as they do, independent of each other and
without any common appellate court to supervise their
decisions.
There was in former times a technical distinction existing on
this subject. As evidence, such exemplifications of letters patent
seem to have been generally deemed admissible, but where in
pleading a profert was made of the letters patent, there, upon the
principles of pleading, the original, under the great seal, was
required to be produced, for a profert could not be of any copy or
exemplification. It was to cure this difficulty that the statutes
of 3 Edw. VI, ch. 4, and 13 Eliz., ch. 6, were passed. So too the
statute of 10 Ann, ch. 18, makes copies of enrolled deeds of
bargain and sale, offered by profert in pleading, evidence.
These statutes being passed before the emigration of our
ancestors, and being applicable to our situation and in amendment
of the law, constitute a part of our common law. By the laws of
Georgia, all public grants are required to be recorded in the
proper state department.
What should be considered proof of the loss of a deed or other,
instrument to authorize the introduction of secondary evidence.
However convenient a rule established by a circuit court
relative to the introduction of secondary proof might be to
regulate the general practice of the court, it could not control
the rights of parties in matters of evidence admissible by the
general principles of law.
This was an action of ejectment brought to May term, 1820, of
the Circuit Court of the United States for the District of Georgia
to recover a tract of land containing 7,300
Page 30 U. S. 234
acres lying in that part of the County of Gwinnet which was
formerly a portion of Franklin County.
On the trial at Milledgeville at November term, 1829, the
plaintiff offered in evidence the copy of a grant or patent from
the State of Georgia to Basil Jones for the land in question, duly
certified from the original record or register of grants in the
Secretary of State's office, and attested under the great seal of
the state. To the admissibility of this evidence the defendants by
their counsel objected on the ground that the said exemplification
could not be received until the original grant or patent was proved
to be lost or destroyed or the nonproduction thereof otherwise
legally explained or accounted for according to a rule of the
court. This objection the circuit court sustained and rejected the
evidence, to which decision the plaintiff excepted.
The plaintiff then offered:
1. A notice to the defendants requiring them to produce the
original grant or patent for the land.
2. The affidavit of the lessor of the plaintiff, William
Patterson, sworn to before Theodorick Bland, District Judge of the
United States for the District of Maryland, on 9 October, 1821,
deposing in substance that he had not in his possession, power, or
custody the said original grant, describing it, and that he knew
not where it was, and that he had made diligent search for the same
among his papers, and it could not be found.
3. The deposition of Andrew Fleming, stating at length the
inquiries he had made for the papers of Thomas Smyth, Jr., by whom,
as attorney in fact for Basil Jones, this land had been conveyed to
William Patterson, and the information he had received of the
destruction of these papers.
4. The deposition of Mrs. Anna M. Smyth, stating the pursuits of
her late husband, Thomas Smyth, and the facts and circumstances
leading to the conclusion that his papers had been destroyed.
5. The plaintiff then called a witness who proved that he had
compared the exemplification of the grant or patent aforesaid with
the register of grants in the office of the Secretary of State of
the State of Georgia and the book or register of surveys in the
office of the surveyor general of the said state, and that
Page 30 U. S. 235
the exemplification offered was a true copy from the said
register of grants and plats in the said offices respectively.
He further proved that he had made search for the original grant
or patent in the said offices and that the same was not there to be
found.
That he had made application to Mrs. Ann Farrar, the relict of
Basil Jones, the grantee, who has since intermarried with Francis
Farrar, for the said original grant or patent, if among the papers
of her late husband, Basil Jones, and was assured by the said Ann
and Francis that there were no such papers in their possession.
That the said witness had made application to Gresham Smyth, the
reputed son of Thomas Smyth, Jr., for the said original grant, if
in his possession, and received for answer that his father had died
while he was yet young, and that he had no papers of his father's
in his possession.
The said witness also proved that he had made diligent search
among the papers of George Walker, now and long since deceased,
who, it appeared, had once had some of the muniments of title of
the lessor of the plaintiff in his possession or been consulted as
counsel, but the said original grant or patent could not there be
found.
That the witness himself, assisted by the clerk of Richmond
Superior Court, where the power of attorney from Basil Jones to
Thomas Smyth, Jr., was recorded, searched diligently through all
the papers in the office for the said original grant or patent
without success.
That the said witness, as agent of William Patterson, caused
advertisements to be published for two months in two of the
gazettes of the State of Georgia for said grant or patent as lost,
offering a reward for its production if required, which
advertisements were exhibited to the court and are inserted in the
record at full length. And the said witness further proved that no
information whatever had been received in answer to the said
advertisements, nor any discoveries made in relation to said
original grant or patent.
He also proved that he had searched the executive office of
Georgia for the said original grant, and had examined the list of
grants or patents to which the great seal of the state had
Page 30 U. S. 236
been refused to be annexed, but the said original grant to Basil
Jones was not found noted upon the said list as one of that
description.
And thereupon the said counsel for the plaintiff moved the court
to admit the said exemplification of the said patent or grant in
evidence, the loss or destruction of the original having been
sufficiently proved, which the said court refused, to which
decision the plaintiff excepted.
Page 30 U. S. 239
MR. JUSTICE STORY delivered the opinion of the Court.
The original action was an ejectment brought by the plaintiff in
error against the defendants, and at the trial in November term,
1829, a bill of exceptions was taken which raises the only
questions which are now before us for consideration.
The bill of exceptions states that the plaintiff offered in
evidence in support of his title an exemplification, under the seal
of the State of Georgia, of a grant or patent to Basil Jones of a
tract of 7,300 acres of land dated 24 May, 1787, and registered 5
June of the same year in the registry of grants in the secretary of
state's office. The defendants objected that the exemplification
could not be received until the original patent was
Page 30 U. S. 240
proved to be lost or destroyed or the nonproduction thereof
otherwise legally explained or accounted for, which objection the
court sustained and rejected the evidence. The plaintiff then
exhibited a notice served on the opposite party to produce the
original grant, and also an original power of attorney from Basil
Jones to Thomas Smyth, Jr., dated 6 August, 1793, to sell and
convey (among other tracts) the tract in question. And also offered
an affidavit, duly sworn to by the plaintiff in October, 1821, that
he had not in his possession, power, or custody the said original
grant or power of attorney, and knew not where they were, and that
he had made diligent search among his papers for the said grant and
power, and they could not be found. He further offered depositions
to prove that search had been made for the papers of Thomas Smyth,
by whom, as attorney in fact of Jones, the land had been conveyed
to Patterson, and that no papers could be found. He further proved
that he had made search for the original grant or patent in the
office of the Secretary of State and the book or register of
surveys in the office of the Surveyor General of Georgia, and that
the same could not be there found. And he further proved by a
witness that the exemplification was a true copy from the register
of grants and plots in the said offices. He further proved that
search had been made among the papers of Basil Jones in the
possession of his widow and among the papers of George Walker,
deceased, who, as counsel for the plaintiff, had once had the
muniments of his, the plaintiff's, title in his possession, and
also in the office of the clerk of Richmond Superior Court, where
the power of attorney was recorded, but without success. He also
proved that he had by public advertisement in two gazettes of the
State of Georgia offered a reward for the production of the said
grant or patent, but no discovery had been made, and that he had
searched the executive office of Georgia for the same and had
examined the list of grants or patents to which the great seal of
the state had been refused to be annexed, but the grant to Jones
was not found noted upon that list as one of that description. And
the plaintiff then moved the court to admit the said
exemplification in evidence, the loss or destruction of the
original having been sufficiently proved, which the court refused.
The plaintiff excepted to the ruling of the court upon both
points.
Page 30 U. S. 241
The first exception presents the question whether the
exemplification under the great seal of the state was,
per
se, evidence without producing or accounting for the
nonproduction of the original, and we are of opinion that it was.
The common law is the law of Georgia, and the rules of evidence
belonging to it are in force there unless so far as they have been
modified by statute or controlled by a settled course of judicial
decisions and usage. Upon the present question it does not appear
that Georgia has ever established any rules at variance with the
common law, though it is not improbable that there may have been,
from the peculiar organization of her judicial department, some
diversity in the application of them in the different circuits of
that state, acting as they do independent of each other and without
any common appellate court to supervise their decisions.
We think it clear that by the common law as held for a long
period, an exemplification of a public grant under the great seal
is admissible in evidence as being record proof of as high a nature
as the original. It is a recognition in the most solemn form by the
government itself of the validity of its own grant under its own
seal, and imports absolute verity as matter of record.
The authorities cited at the bar fully sustain this doctrine.
There was in former times a technical distinction existing on this
subject which deserves notice. As evidence, such exemplifications
of letters patent seem to have been generally deemed admissible.
But where, in pleading, a profert was made of the letters patent,
there, upon the principles of pleading, the original under the
great seal was required to be produced, for a profert could not be
of any copy or exemplification. It was to cure this difficulty that
the statutes of 3 Edw. VI, ch. 4, and 13 Eliz., ch. 6, were passed,
by which patentees, and all claiming under them were enabled to
make title in pleading by showing forth an exemplification of the
letters patent, as if the original were pleaded and set forth.
These statutes being passed before the emigration of our ancestors
being applicable to our situation, and in amendment of the law
constitute a part of our common law. A similar effect was given by
the statute of 10 Anne, ch. 18, to copies of deeds of bargain and
sale, enrolled under the statute of Henry VIII when offered
Page 30 U. S. 242
by way of profert in pleading, and since that period, a copy of
the enrollment of a bargain and sale is held as good evidence as
the original itself. 1 Phillips on Evidence ch. 5, § 2, 208 to
302; ch. 8, § 2, 352 to 356, 408-411; Bac.Abridg. title
Evidence F. 610, 644, 646; Com.Dig. Evidence A. 2; 1 Starkie on
Evidence § 33, 152; 2 Saund. on Pleading and Evidence 638;
Page's Case, 5 Co. R. 53; 12 Viner's Abridg. title Evidence A. b.
25, 97; A. b. 33, 114; 1 Saund. R. 189, note 2.
Such, then, being the rule of evidence of the common law in
respect to exemplifications under the great seal of public grants,
the application of it to the case now at bar will be at once
perceived, since, by the laws of Georgia, all public grants are
required to be recorded in the proper state department.
The question presented by the other exception is whether, under
all the circumstances of the case (even supposing the
exemplification of the grant had not been admissible in evidence
upon the principles already stated) there was not sufficient proof
of the loss of the original to let in the secondary evidence by a
copy of the grant. It is understood that the court decided this
point wholly upon the ground that the affidavit of Patterson did
not conform to a rule made by the court in December, 1823. That
rule is in the following words:
"Whenever a party wishes to introduce the copy of a deed or
grant in evidence, the oath of the party stating his belief of the
loss or destruction of the original, and that it is not in his
possession, power, or custody, shall be indispensable in aid of
such evidence as he may adduce to prove the loss."
Patterson's affidavit was made before the making of this rule
(in 1821), and the defect in it is that it does not contain any
declaration of his belief as to the loss or destruction of the
original.
It might not be important to decide this point if it were not
understood that the same objection applied to the copy of the power
of attorney in the case, as to the copy of the grant. We think that
the affidavit and other circumstances of the case were sufficient
to let in the secondary evidence. The grant and power of attorney
were of an ancient date, the former being more than forty years old
and the latter but a little short of that period since the
execution. Some presumption
Page 30 U. S. 243
of loss might naturally arise under such circumstances from the
mere lapse of time. There appeared also to have been a very
diligent search in all the proper places, and among all the proper
persons connected with the transactions to obtain information of
the existence or loss of the papers. The affidavit of Patterson
explicitly denied any knowledge where they were and declared that
they were not in his possession, power, or custody. We think that
according to the rules of evidence at the common law, this
preliminary proof afforded a sufficient presumption of the loss or
destruction of the originals to let in the secondary proof, and
that it was not competent for the court to exclude it by its own
rule. However convenient the rule might be to regulate the general
practice of the courts, we think that it could not control the
rights of the parties in matters of evidence admissible by the
general principles of law.
The judgment must therefore be
Reversed and the cause remanded to the circuit court, with
directions to award a venire facias de novo.
MR. JUSTICE JOHNSON dissenting.
I am very well content that the judgment in this Court should be
reversed, as it went off below on grounds which had little to do
with the merits of the case. But I regret that no other grounds
have been found for reversal than such as I feel it my duty to
enter my protest against.
The truth of the case is that the plaintiff below was precluded
from introducing evidence of a secondary nature under a rule of
practice of five or six years standing in that circuit, the benefit
of which was strenuously claimed by the opposite counsel. The court
would have permitted the copy grant and copy power of attorney
offered in evidence to go to the jury upon the proof of loss of the
originals, which was introduced, but as all the evidence which can
be adduced in such cases will be found very generally to leave the
case subject to the possibility that the deed (except in cases of
positive destruction) may still be in the party's own hands or of
another for him, the experience of that court, as well as the
practice of the state courts and the received doctrine that such
proof is addressed to the legal discretion of the judge
Page 30 U. S. 244
had caused that court to require by rule the expurgatory oath of
the party in a prescribed form such as any man may take in an
honest case.
An affidavit of the plaintiff was tendered, but not in the form
prescribed and in a form which did not amount to a substantial
compliance with the rule, since the affidavit so tendered might
have been made consistently with truth and yet the deed may, by
possibility, have been delivered into the keeping of the affiant's
next-door neighbor, at least so it appeared to that court. It is
true, it was of old date and even antecedent to this suit, but then
the plaintiff was still in life, and at any hour within the six
years since the rule was adopted might have amended it.
It appears by the first bill of exceptions that at the trial,
the plaintiff's counsel first offered in evidence a certified copy
of the grant, without offering in any mode whatever to account for
the absence of the original -- not even the defective expurgatory
oath, already noticed -- so that,
non constat but that the
original was then on the table before him. The defendant's counsel
objected on the ground
"that such exemplification could not be received until the
original grant or patent was proved to be lost or destroyed or the
nonproduction thereof otherwise legally explained or accounted
for."
This doctrine the court sustained, and this is now to be
overruled and the doctrine established that
"in the State of Georgia, a copy grant certified by the
Secretary of State is of the same dignity with the original grant,
and
per se evidence in ejectment."
Although I do not know that it would make any difference in the
law of the case, yet it is necessary to examine this bill of
exceptions carefully to understand its true meaning. The copy
tendered has been supposed to be authenticated under the seal of
the state, and the printed brief states it to be under the great
seal. The word "great" is not in the exception, and as the whole
matter thus set out is made part of the bill of exceptions by
referring to it, it will be seen that the seal is only appended to
the governor's certificate to the character of the officer who
certifies it, and his certificate only goes to the fact that the
writings exhibited are true copies from the record book of surveys
and the register of grants. It is not then
Page 30 U. S. 245
certified that such a grant was made or issued, but only that
the above is a "true copy from the register of grants," which I
propose to show is only a certified copy of a copy.
But the general principle involved in this decision is one of
infinitely greater importance than a mere rule of evidence. It is
no less than this -- how far each state is to be permitted to fix
its own rule of evidence as applicable to its own real estate.
The course of reasoning, I presume, on which this doctrine is to
be fastened upon the jurisprudence of Georgia is this: "such is the
doctrine of the common law, and the common law being the law of
Georgia, ergo such must be the law of Georgia."
But until better advised I must maintain that neither the major
nor minor proposition here can be sustained; that the one is
incorrect in the general, the other true only in a modified sense,
and in that sense will not support the doctrine of this bill of
exceptions.
If it is the correct sense of the common law that the
exemplification of a patent is as good evidence as the patent
itself, I am yet to be made acquainted with the authority that
sustains the doctrine. I am sure that
Page's Case, 5 Coke,
commonly cited as the leading case in its support, establishes no
such principle. It relies expressly on the British statutes for the
sufficiency of the exemplification of the patent and the right to
use it in the profert, and the exemplification is introduced into
the cause in order to correct an alteration that had been made in
the date of the original patent, the original being then also
before the court.
But it would be a waste of time to run over cases upon this
question when we know that the force or authenticity given to such
exemplifications is derived from the statutes 3 and 4 Edw. VI, ch.
4; and 13 Eliz, ch. 6, and then only of patents since 27 Henry
VIII. Now how is it possible that such secondary evidence should
have been good at common law and yet need the aid of those statutes
to sustain it?
In the passage in the Institutes on this subject, the
introduction of these exemplifications of patents is expressly
treated as an exception to the general rule. Co.Litt. 225.
Hargrave's Co.Litt. 314. That a patent is proved by its own seal we
find
Page 30 U. S. 246
laid down in many places, and has always been the law of
Georgia. On the other member of this syllogism, it is not to be
questioned that in Georgia, as well as in every other state in the
union, the common law has been modified by local views and settled
judicial practice. So that were it generally true as laid down that
at common law, the copy of the grant was equal in dignity as
evidence to the original, still, unless so recognized in Georgia,
it is not the law of Georgia.
Now, to say nothing of my own
"lucubrationes viginti
annorum," there is not a professional man in Georgia who does
not know that such has never been the rule of judicial practice in
that state. I may subjoin in form of a note the most ample proof on
this subject, and there is a reason in the practice of their land
office for this principle, which is too well known to every man in
that country to leave a doubt of the correctness with which they
have applied the rules of evidence to their actual practice in the
trial of land causes. I make no doubt that there are at this moment
thousands of grants lying unclaimed in the land office, every one
of which has been copied into the register. The truth is the grant
is a separate thing, from the true original, and the facsimile of
it (if it may be so called in the register) is nothing more than a
copy, so that the paper here dignified with the epithet of an
exemplification is nothing more than a copy of a copy, and
therefore always considered in practice as evidence of an inferior
order.
The courts of that state have latterly relaxed in requiring
evidence of loss, but even at this day, such evidence cannot be
received in any of their courts without an affidavit from the party
presenting it of his belief in the loss or destruction of the
original.
And there are other reasons in support of this practice. For
instance, suppose the copy on the register of grants should be
found variant from the original, without imputation of fraud in the
latter, it is unquestionable that the original must prevail. So
also in case of interlineation, erasure, or alteration of the
original, why should the party be permitted to escape the penalties
of the law by suppressing it and producing a correct copy from the
register?
The second bill of exceptions goes to the exclusion of the
Page 30 U. S. 247
copy deed for want of a substantial compliance with the rule of
court. If this Court mean to express the opinion that the rule was
substantially complied with, it is one of those mere matters of
opinion which are not to be argued down. Certainly the defect
already mentioned is imputable to the affidavit that was tendered,
and there was no want of time to have made it conform to the rule.
But if it be insisted that the court transcended its powers in
making such a rule, then may the practice of the state and United
States courts from time immemorial, and the actual existing
practice of the courts of the states at this day, as well as the
reason of the thing, be urged in its vindication; and if it be
objected that the case was one in which the court below might have
relaxed its rule, then it may be fairly asked how is it possible
for one mind to dictate to another on such a subject? It is an
exercise of discretion which can be limited and directed by no
fixed rule.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Georgia and was argued by counsel, on consideration whereof it is
considered and ordered by this Court that the circuit court erred
in refusing to allow the exemplification of the grant to Basil
Jones mentioned in the record to be read in evidence as in the
exceptions of the plaintiff is mentioned. Whereupon it is ordered
and adjudged by this Court that the judgment of the said circuit
court in this cause be and the same is hereby reversed, and that
this cause be and the same is hereby remanded to the said circuit
court with instructions to award a
venire facias de
novo.
