MEMORIALS AS EVIDENCE. (a) The subject is treated of, 1st, as to the search requisite to let in secondary evidence; 2nd, how far a memorial executed by a grantor is evidence of the matters therein stated; 3rd, how far it is evidence if executed by a grantee; 4th, the distinction between the evidence furnished by a memorial in ejectment, and as between a vendor and purchaser, or under the act for quieting titles; and 5th, as to proof of execution. 1st. It frequently happens that secondary evidence of a As to search. missing document or title deed is rejected in consequence of the insufficiency of the search for the original. hold entitled of title deeds remainder. Title deeds Parties who search for a missing conveyance with a view Owner of first to let in secondary evidence should bear in mind that the estate of freeperson entitled to the first immediate estate of freehold is to the custody the person entitled to retain the custody of the title deeds as against as against those entitled to ulterior estates in remainder or those in reversion; and that the deeds are presumed to follow the title and to go into the custody of those entitled (b). When presumed to the land descends to real representatives, they, and not the be in custody personal representatives, are entitled to the deeds, though tled to them, for greater certainty a search with the latter would be advisable, especially in the case of a missing mortgage. The How prepresumption that the deeds follow the title and go to him sumption destroyed. entitled may be destroyed; as for instance, by the fact that Sale by owner they covered other lands retained by the vendor (c); or that of part. (a) The importance of this subject has induced the author to add this chapter, which in January, 1868, he published in the Upper Canada Law Journal. (b) Moriarty v. Grey, 12 Ir. C. L. Rep. 141, per O'Brien, J.; Sug. Vendors, ch. 11, s. 4; see also Marvin v. Hales, 6 U. C. C. P. 211, post; but see Sug. ch. 11, sec. 4, cl. 23, as to the right to the deeds of the grantee or releasee to uses. (c) Yea v. Field, 2 T. R. 708. of those enti Covenant to produce by former owner. some prior owner on conveyance by him of a portion gave Where a vendor on sale of a part a covenant to produce. of his lands retains the deeds and gives a covenant to produce, it does not follow that on conveyance of the residue, the title deeds remain with him to answer his covenant to produce; on the contrary, it would seem that in the absence of stipulation, the vendee of the residue will be entitled to the deeds even against the prior vendee, and be bound by the covenant to produce as running with the lands (a). A learned Judge whose position before his elevation to the Bench was such as to have given him great practical experience, has expressed his recollection of the practice, however, as follows; "I think it used to be the practice, when the owner of a lot of land sold half of it, to retain the conveyance to himself; and in the event of his selling the other half, to give that conveyance to the purchaser of the second half (b)." This dictum had no reference to the vendor having on the first sale given a covenant to produce, and was by way of suggestion to the parties as to further search for a missing conveyance, of which no evidence other than a memorial signed by the grantee was given On sale of part of the estate in lots without any stipulation as to the deeds, the holder of the portion of the highest vabe is entitled to the custody, whether seller or parchaser, giving Joint owners, the other a covenant to produce 2. Of joint owners, or tenants in common, coparceners and joint teaIA WENGever of them obtains possession of the deeds is exited to retain them, and the presumption would be that they word go to the grantee or heir at law of the posesor ungt in the case of joint tenants, whose heir at law waz da be entitled. who entitled to title deeds. Search by the party to the Where the instrument, if subsisting shui le a per sion of the party himself to the cause who desires Tire bis own pa- secondary evidence, the proper course is that in strali cause among pers, how made. (a) Ante, p. 422, n. a. (b) Wishart v. Cook, 15 Grant, 237. with a witness, and that the search should be "so conducted and in such places as to afford a reasonable ground for concluding that it was made bona fide, both as regards the witness and as regards the party, by giving and using all possible facilities for making it effectual." If he should himself have searched accompanied by a witness, but the witness should have made no search, and have accepted the statement of loss of such party as true, the search will not be sufficient (a). duce. It may sometimes be that as against a person claiming Notice to prothe freehold mere notice to him to produce may suffice, without evidence of search, on the presumption above referred to, that the deeds follow the title and are in the possession of the party to whom notice is given (b); for search would be useless with prior owners when the law would presume the title deeds were not with them, but passed from each prior owner to his grantee. That notice to produce alone should suffice, there must be nothing to destroy the presumption that the deed followed the title, as, for instance, a covenant to produce given by a prior owner. On a question of sufficiency of search, and proof of loss to What is suffilet in secondary evidence, Richards, C. J., in a recent case (c) expressed himself as follows: "In Reg. v. The Inhabitants of Kenilworth (d), Lord Denman, in reference to a general rule established as to what is established as to what is a sufficient search to let in secondary evidence said, 'I think that no general rule exists. The question in every case is whether there has been evidence enough to satisfy the Court before which the trial is had that, to use the words of Baily, J., in Rex. v. Denis, 'A bona fide and diligent (a) Bratt v. Lee, 7 U. C. C. P. 280. (b) See Marvin v. Curtis, 6 U. C. C. P. 212. (c) Russell v. Fraser, 15 U. C. C. P. 380. See also as to search, Ansley v. Breo, 14 U. C. C. P. 371; Gathercole v. Miall, 15 M. & W. 319; Doe d. Padwick v. Wittcomb, 6 Ex. 601; 4 H. L. Ca. 425, S. C.; Taylor on Evidence, p. 423, 5th ed.; Smith v. Nevilles, 18 U. C. Q. B. 473; Best on Evidence, 4 ed. 606; Martin v. Hales, 6 U. C. C. P. 203; Marvin Curtis, id. 212; Bratt v. Lee, supra, 7 U. Ć. C. P. 280. V. (d) 7 Q. B. 642. cient search. which tries than for us. What is suffi- search was made for the instrument where it was likely to cient search. be found. But this is a question much fitter for the Court They have to determine whether the evidence is satisfactory, whether the search has been bona fide, whether there has been due diligence, and so on. It is a mere waste of time on our part to listen to special pleading on the subject. To what employment shall we be devoted, if such matters are brought before us as matters of law? The Court below must exercise their own judgment as to the reasonableness of the search, taking into consideration the nature of the instrument, the time elapsed and numerous other circumstances, which must vary with every case." "As to the diligence in the search necessary to let in secondary evidence, the following quotation from Taylor on Evidence seems to lay down the proper principles to be acted on by the Courts: What degree of diligence is necessary in the search cannot easily be defined, as each case must depend on its own peculiar circumstances; but the party is generally expected to shew that he has in good faith exhausted in a reasonable degree all the sources of information and means of discovery which the nature of the case would naturally suggest, and which were accessible to him. As the object of the proof is merely to establish a reasonable presumption of the loss of the instrument, and as this is a preliminary enquiry addressed to the discretion of the judge, the party offering secondary evidence need not on ordinary occasions have made a search for the original document as for stolen goods, nor be in a position to negative every possibility of its having been kept back.'' In a recent case (a) the following remarks were made:"I think the only question is, if sufficient, search has been made for the original. Now to determine this it must be shewn that search has been made where the instrument would most probably be. It is for the presiding Judge to decide whether reasonable evidence has been given to (a) Reg. v. Hinckley, 8 Law Times, N. S. 270. satisfy his mind that the document has been lost. But it is also a mixed question of law and fact which the Court can subsequently review." 2nd. When sufficient evidence has been given of destruc- Memorials as tion of the original document, or of search and loss to let in evidence. secondary evidence (a), memorials afford, in cases of conveyance, a frequent means of furnishing such evidence, and are admissible or not, and if admitted, have a probative effect according to the circumstances. grantee, When the plaintiff sought to make the defendant liable as Mem. signed by grantor assignee of a term on the covenants contained in a lease, not per se eviand gave notice to produce the assignment, and then evi- dence against dence by a memorial signed by the assignor, and further evidence that the defendant had taken proceedings in Chancery as assignee, the Court held that the memorial alone was not sufficient, but that coupled with the other facts of the case there was sufficient evidence to go to a jury (b). without ac Sir J. B. Robinson, C. J., in an ejectment suit (c) wherein vor against the plaintiff sought to give in evidence a memorial signed strangers by a grantor, under whom he claimed, but with whom the counting for defendant who shewed no title was not in privity, after original. stating that there was not sufficient evidence of search to dispense with production of the original deeds, thus expresses himself: "I have sometimes thought that such evidence as was offered in this case might without danger be admitted to prove the fact of the conveyance being made which is recited in the memorial, especially as against a defendant who has no title in himself; but the Legislature has not thought proper to make such evidence admissible without accounting for non-production of the deed, as is done with respect to bargains and sales enrolled under Stat. 10 Anne, ch. 18, s. 3." (a) As to memorials as primary evidence, see 1 Tayl. Ev. 405, 4th ed.; White v. Pike, Coo. & Al. 70, per Bushe, C.J.; Cathrow v. Eade, 4 DeGex & Sm. 527, per Knight Bruce, V.C.; Marvin v. Hales, 6 C. P. U. C. 211, per Draper, C. J. (b) Jones v. Todd, 22 U. C. Q. B. 53. (c) Smith v. Nevilles, 18 U. C. Q. B. 473. |