William Eaton versus Archibald Campbell.
An office copy of a registered deed is admissible in evidence, where the grantee is out of the Commonwealth, and the original deed is not under the control of the party producing the copy.
Where the proof of a deed is by a copy, it is unnecessary to produce a subscribing witness.
A, being indebted to several persons, fraudulently conveys his laud to his son. Afterwards he agrees with some of his creditors, B being one of them, to convey the land to B, upon his undertaking to pay debts, including the one due to himself, to an amount equal to the value of the land ; and to carry the agreement into effect, he makes another deed to his son, who on the same day makes a deed to B, there being no other consideration for these deeds than the undertaking of B. It was held, that these deeds constituted but one transaction, and being bond fide, B’s title was valid as against other creditors.
Trespass quart clausum fregit. Trial before Parker c. j„
The plaintiff claimed a title under an execution extended by him upon the land as the property of Samuel Campbell, and who was the owner, unless the property had passed out of him by virtue of the following proceedings. Previous to the seizure on execution (there having been no attachment on mesne process) and before November, 1811, Samuel Campbell, who was then indebted to divers persons, and among others to the judgment creditor, fraudulently conveyed the land to his son Henry Campbell. On the 18th of November, 1811, several of the creditors of Samuel (among whom was the father of the defendant) making a demand on him for payment or security, it was agreed that a conveyance should be made to one of them, who should assume to pay the debts of the others. The defendant’s father then consented to take the conveyance, and to assume the debts of the parties to this agreement. To carry the agreement into effect, a deed of the land was made from Samuel to his son Henry, as appeared by a copy from the register’s office, and Henry on the same day executed and delivered his deed of the land to the defendant’s father, who thereupon undertook to pay the debts of the other creditors, parties to the agreement; which debts, with the sum due to himself, were equal to the fair value of the land. The whole of this transaction was alleged by the plaintiff to be fraudulent, *12he denying that Samuel was indebted to the several persons for whose benefit the arrangement was made ; and the jury were instructed to find for the plaintiff, if they were not entirely satisfied of the fairness and honesty of the transaction and of the actual indebtment of Samuel. They returned a verdict for the defendant.
Oct. 2d, 1827.
Objection was made to the admission in evidence of the registry copy of the deed to Henry, there being no proof of its execution by any subscribing witness, but only the testimony of persons present on the occasion, that such deed was made at the time. It appearing that Henry was not within the Commonwealth, and that the defendant had no control over his papers, this objection was overruled, although no evidence was offered to show any endeavour to procure the original deed.
It was objected also, that as the deed from Samuel referred to the one from Henry, for the description of the land, it appeared that the latter was executed before the former, so that there was no title in Henry when he made his deed. But the Chief Justice was of opinion that such was not the true construction of the deeds, and as the whole arrangement was made on the same day and was one transaction, he thought it not material which deed was executed first, and overruled the objection. There was no evidence of any consideration paid by Henry to Samuel, nor by the defendant’s father to Henry, but the sole consideration was the assumption of the debts as before mentioned. It was objected that no title passed to the defendant’s father, under all these circumstances ; but all the legal objections were overruled, and the case committed to the jury entirely upon the question of fraud.
The plaintiff moved for a new trial.
Tufts and Merrick, in support of the motion,
insisted on the objections made at the trial. To show that secondary evidence to prove the deed from Samuel to Henry was improperly admitted, they cited 1 Starkie on Ev. 330, 368, and note 1; Worcester v. Eaton, 13 Mass. R. 377. They contended that the two deeds could not be considered as one transaction, because they were not between the same parties, and parol evidence would be required to connect them; and that if thev *13were one transaction as between Samuel, Henry, and the defendant’s father, they were not so in regard to strangers.
Oct. 6th, 1827
Davis and Barton, contra,
cited to the point that the office copy was admissible in evidence, Homer v. Wallis, 11 Mass. R. 609 ; Sluby v. Champlin, 4 Johns. R. 461 ; Prince v. Blackburn, 2 East, 250 ;—and to the point that the two deeds were one transaction, Holbrook v. Finney, 4 Mass. R. 569 ; King v. King, 7 Mass. R. 499 ; Clark v. Munroe, 14 Mass. R. 351 ; Clap v. Draper, 4 Mass. R. 267 ; Wilkinson v. Scott, 17 Mass. R. 249.
Per Curiam.
In England, on the conveyance of land, all the title deeds are delivered to the purchaser, and it is reasonable there to require him to produce tire original deed given to a prior grantee. In this Commonwealth the mode of conveyancing is different. Here the grantee takes only the immediate deed to himself, relying on the covenants of his grantor. He has no right to the possession of the title deeds of the estate, and to require him to produce all the original deeds for twenty years or more and to bring in the subscribing witnesses, would be unreasonable and oppressive. It will be found convenient to have a copy from the register’s office prima facie evidence, even where the grantee lives within the Commonwealth, until the case assumes a different shape on a question of fraud.
Determining that an office copy is prima facie evidence, oi course dispenses with the necessity of calling a subscribing witness.
The Court made no remark upon the other points, but directed judgment to be entered according to the verdict.