Citations
- 8 Ohio 81
Full opinion text
Judge Hitchcock
delivered the opinion of the court:
On the trial of this case, the lessor of the plaintiff claimed title to the premises in controversy as the heir at law of Moses Blackburn, jr., deceased, and that his ancestor derived his title by deed from Moses Blackburn, sen. The defendant claimed title under the will of Moses Blackburn, deceased, as residuary devisee or legatee. The deed of Moses Blackburn, sen., to Moses jr., was not produced in evidence, nor a copy from any public office. But the existence and execution of such deed, and its loss, *were attempted to be proved, for the purpose of laying the foundation for going into secondary evidence of its contents. With this preliminary proof the court were satisfied, and admitted parol evidence to go to the jury to prove the contents of'the deed. In this it is supposed by the counsel of the defendant that the court erred, and this error furnishes the ground for the first reason assigned for a new trial.
We are well aware of the necessity which exists, that there-should be certainty with respect to land titles; and that the state of these titles may be known, and evidence of them preserved, our law requires that deeds and other instruments of writing, conveying, and incumbering lands should bo recorded. The same law prescribes that copies from the records of deeds, mortgages, etc., should be prima facie evidence of the existence of such deeds, so that where a deed has been recorded, the party claiming under it is relieved from the necessity of proving its execution, provided he introduce in evidence a copy. 29 Ohio L. 349. The wisdom of this particular provision of law may be questioned; but still, while it continues a part of our system, it must be enforced; Tho recording of a deed, however, is not necessary to give it validity as between the parties. The title passes, not by the recording, *but by the delivery of a deed. True, if it be not recorded within a limited time, a subsequent grantee without notice, will have the land. This is not, however, because there was anything remaining in the grantor which he could convey, but because the-first grantee has been guilty of a culpable neglect, which, upon. any other principle, would operate an injury upon an innocent individual. The title having passed by the delivery of a deed, is not divested by the destruction or loss of that instrument. It still remains in the grantee. How shall he manifest it? Counsel for the defendant answer, by a copy from the recorder’s office. It may not have been recorded, or if recorded, the record itself may have been lost or destroyed. As a matter of fact we know that public records are not unfrequently consumed- by fire, or otherwise destroyed. When other instruments of writing are lost or destroyed, the law is well established that secondary evidence of their contents shall be received. This is not denied; but it seems to be supposed that there is some peculiar sanctity about conveyances of real estate, which requires a different rule to be established. In the opinion of the court, however, the rule is the same in either case. The court must be first satisfied of the existence, execution, and loss of the instrument. No particular kind