of the deed of trust or accomplish the same result by a decree establishing the existence of the deed.

Low v. Staples (1866) 2 Nev. 209, was an action wherein the plaintiff sought to have certain persons compelled to execute deeds of conveyance to him. The possession, while not in the plaintiff, was in a company which admitted the rights of whoever held a certain title. The plaintiff showed that he had a title derived from such a source, but that the chain of title had been broken by the loss of some of the deeds. The court, holding that the plaintiff's bill might be maintained whether he was in possession of the premises or not, said: "We see in such case no necessity for an action at law to give possession. If he establishes his chain of title, his rights will be acknowledged-no action at law will be required. Independent of any statute, therefore, the plaintiff's remedy was complete in equity." The necessity of legal title in an applicant for equitable relief was made clear.

In Kent v. Church of St. Michael (1892) 136 N. Y. 10, 18 L.R.A. 331, 32 Am. St. Rep. 693, 32 N. E. 704, the court reviewed the decree in a collateral proceeding whereby the representatives of the grantor of a lost deed were ordered to execute another deed by way of replacement.

The

grantee, who had paid for the property, had been in possession for many years claiming title thereto, but his executors, on account of the loss of the deed, could not make a good record title to the land, which they had contracted to sell. The court said: "Un- . der such circumstances, there can be no question that a court of equity had power and jurisdiction to relieve the persons who represented the grantee, and who in fact had title to this land, from the dilemma in which they were placed by the loss of the deed, by compelling Mrs. Stewart, if living, and after her death those who represented her title, to execute another deed. A purchaser under a valid contract of purchase, who has performed the contract on his part and is entitled to a deed from his

vendor, can ccmpel specific performance of his contract by the delivery of the deed to him in pursuance thereof, and this can be done in the exercise of the jurisdiction of a court of equity to compel the specific performance of contracts. But where the contract has been performed and the deed given, which the purchaser by some accident or misfortune has lost so that he has no record title to the land which was conveyed to him, it is well settled that a court of equity will compel the vendor to execute another deed so as to clothe the purchaser with the record title; and an action for that purpose is not dependent upon any provisions of the Code contained in §§ 1638, 1650, and 2345, to which our attention has been called. It has its sanction in the general jurisdiction of a court of equity. Under such circumstances it would be inequitable for the vendor to retain the record title and to refuse to execute a new deed, and the purchaser can be relieved only by the execution of a new deed. Sugden, Vend. chap. 11, § 4, subd. 15; Adams, Eq. 166, 337; Willard, Eq. 52, 301; Cummings v. Coe (1858) 10 Cal. 529. Therefore. the judgment against the trustees and heirs of Mrs. Stewart was in a proper action and proper form, and the question is whether it will bind the afterborn grandchildren, if any, of Mrs. Stewart. We think it will."

In Hord v. Baugh (1847) 7 Humph. (Tenn.) 576, 46 Am. Dec. 91, it was said: "This bill, filed by complainant, asking the aid of a court of chancery to set up a deed of bargain and sale for a tract of land, which was lost and destroyed before registration, the bargainor having departed this life without executing another. The representatives of the bargainor do not resist the relief sought, but the chancellor dismissed the bill upon the ground that the bargainor, having once conveyed the land, had parted with all his interest therein, and that the court had no jurisdiction of such case. In this we think the chancellor erred. The loss of the deed is a casualty seriously endangering the complainant's title, as he can maintain

no action of ejectment without it. He then then certainly certainly must have a right to ask the aid of the court of chancery in his case, either by having the legal title vested in him as against the bargainor and his representatives, or by having the deed set up and established, as in all other cases of lost deeds. The complainant may have his decree for either or both of these remedies."

A court of equity, having jurisdiction of the person of one who is proven to have been guilty of a breach of trust in destroying a deed after the execution and delivery thereof to the grantee, thereby placing a cloud on her title, will compel him to correct the wrong, even though the relief should require a decree directing a conveyance of a tract of land in another state. See King v. Pillow (1891) 90 Tenn. 287, 16 S. W. 469, wherein the rights of the grantee were said not only to have grown out of a trust, but to have been founded on a fraudulent violation of the principles of equity

In Cartright v. Cartright (1912) 70 W. Va. 507, 74 S. E. 655, Ann. Cas. 1914A, 578, the court ordered the appointment of a commissioner to make and deliver to the plaintiff a deed conveying the title vested in her by a lost deed. In that case it was said: "It is also urged that equity will not entertain a bill to establish a lost instrument, or to compel re-execution of same, unless some additional relief, under the instrument, is demanded by the bill. We need not stop to consider whether such ancillary relief is essential to confer jurisdiction or not, because the averments of the bill disclose a substantial property right in plaintiff, which is necessary to be protected by the establishment and recordation of the lost deed. Plaintiff is not entitled to possession of the land, for the bill avers that, by the very terms of the lost deed, a life estate was reversed for grantor's husband, Thornton F. Cartright, who was living at the time the suit was instituted. But, so far as record evidence of title is concerned, on the death of Nancy A. Cartright the land

apparently descended to her heirs subject to the life estate of Thornton F. Cartright, and there is danger that a bona fide purchaser from, or a judgment creditor of, the heirs, may acquire a right in respect thereto superior to plaintiff, because of our recording statutes, and equity will entertain plaintiff's bill to protect her against such hazard, if for no other reason. Moreover, it is the policy of the law to secure to the owner the full enjoyment of his property, one essential element of which is the jus disponendi, and while he may not be in immediate danger of an ouster, still, if he is not able to deraign title by the record, and is compelled to rely upon the testimony of witnesses to establish it, the market value of his property will thereby be materially affected. In order to relieve the owner's title of such embarrassment and facilitate the transfer of his property, equity will restore a lost deed, even if no other relief be demanded, when the rights of others will not thereby be violated."

In Anderson v. Akard (1885) 15 Lea (Tenn.) 182, a bill to set up a deed alleged to have been lost intentionally, it was objected that the complainant had no title to the land when the bill was filed. The conveyance to the complainant was signed by the widow of the grantee in the lost deed, and by one of her daughters, who was not, however, named in the body of the deed, the other children making a subsequent quitclaim deed, there being no privy examination, however, of two married daughters. The court said: "To enable the party, in case of a lost title deed, to come into equity for relief, he must have established that there was no remedy at law at all, or no remedy which was adequate and adapted to the circumstances of the case. If the deed was lost, and the party in possession prayed discovery and to be secured in his possession under it, the jurisdiction of equity would be clear, for no remedy in such a case lay at law. Dalston v. Coatsworth (1721) 1 P. Wms. 731, 24 Eng. Reprint, 589. And so this court has held that the

loss of a deed to land before registration entitles a party to have the deed set up in equity. Hord v. Baugh (1847) 7 Humph. (Tenn.) 576, 46 Am. Dec. 91. For the same reason that there is no remedy at law, a person having only an equity in land, or a right to call for the title, would be entitled to the same relief. And obviously, the extent of the interest or equity of such person in the land would not affect the right. All that equity would require him to do would be to bring all the parties interested in the title before the court, so as to prevent a multiplicity of suits. And that is what the complainant, Anderson, has done in this case."

In Wade v. Greenwood (1843) 2 Rob. (Va.) 497, 40 Am. Dec. 759, wherein it appeared that the sale of certain property was held up because of a missing deed, of which there was satisfactory evidence, the court said that a commissioner should have been directed to execute such a deed.

It has been held that the removal of a cloud caused by the loss of the judgment debtor's deed was an essential step in subjecting land to the payment of a judgment in accordance with a prayer therefor. Steinman v. Clinchfield Coal Corp. (1917) 121 Va. 611, 93 S. E. 684.

In James v. McGuire (1922) 132 Va. 251, 111 S. E. 136, the court, without discussing the right to restore a lost deed, affirmed a decree ordering the defendant to re-execute an unrecorded deed which he had delivered to the plaintiff, but which he had destroyed after obtaining it for the alleged purpose of reading it over, the original deed having been executed in pursuance of an agreement under which the plaintiff moved to the defendant's house, where she was to make a home for him.

One whose chain of title to certain property was incomplete because of a lost deed, and who consequently could not successfully defend an action at law brought to test the legal title to the property, has been held to be justified in asking equitable aid to ascertain the existence of such a deed. Lash v. Butch (1856) 4 Iowa, 215.

And in McCormick v. v. Jernigan (1892) 110 N. C. 406, 14 S. E. 971, a case beyond the scope of this annotation, the court said: "Hence a bill for the re-execution of a deed lost or destroyed in the hands of a grantee cannot be sustained unless there is some additional ground for relief."

In Jacobson v. Roman (1920) 57 Mont. 299, 188 Pac. 138, an action brought to compel the re-execution of a deed, the court laid down the following principles governing the restoration of a lost or destroyed deed: "It is well settled that, when a deed has once been executed and delivered, but has been lost or destroyed before it is properly recorded, and the title of the grantee is thus affected, a court of equity has jurisdiction to decree a restoration of it. The right of the owner of real estate to have his evidence of title appear properly upon the record is a substantial property right which the law recognizes; and a court of equity will entertain an action by him against his grantor to establish the lost deed when such relief is necessary to protect his rights in this behalf, and this whether the loss occurred while the deed was in the possession of the grantee, or not. For a stronger reason will relief be granted if the grantor has fraudulently gained possession of the deed and destroyed it. In the former case the restoration should not be made at the expense of the grantor, unless, upon demand accompanied by the presentation to him of a new deed ready to be executed by him, he refuses to execute and acknowledge it. In the latter case the grantor has by his wrongful act directly invaded the substantial rights of the grantee, which is remediable at his expense, as any other wrong. 17 R. C. L. 1170." But these principles were held to be inapplicable to the case before the court, because there had been no acceptance or delivery of the destroyed deed. Legal title to the land, it was held, did not pass, nor title to the deed itself; and since the jurisdiction invoked by the plaintiffs presupposed that a conveyance already made had been lost or destroyed, the decision of the dis

trict court refusing the relief sought by the plaintiff was affirmed.

In Morris v. Parry (1908) 218 Mo. 701, 118 S. W. 430, an action to establish a lost deed, the court stated that in its opinion the deed in question conveyed no legal or equitable title. In upholding the decree of the court below in dismissing the bill, it was said: "We cannot see how the establishment of the lost deed in any way affects plaintiff's title. At most, that deed would merely tend to show that Parry participated in the locating of the county seat by removing an apparent claim he had as entryman, which entry was afterwards canceled by the United States government. When established, the deed would be no muniment of title, and in point of law it conveyed no estate." Equity ought not to do useless things, said the court.

In Poling v. Poling (1906) 61 W. Va. 78, 55 S. E. 993, wherein it appeared that a lost deed from a wife to a husband had been restored in a former proceeding, the court said: "By the bill in this cause, the plaintiffs point out that the deed restored by the decree complained of was void, because made by a wife to her husband while they were living together, and in which he did not join; and that the decree is erroneous, because it in effect restored such void deed. A deed of conveyance for land made by a wife to her husband while they are living together, in which he did not join, is void. Smith v. Vineyard (1905) 58 W. Va. 98, 51 S. E. 871. Mullins v. Shrewsbury (1906) 60 W. Va. 694, 55 S. E. 736. The deed being void, was the decree restoring it erroneous for that reason? An argument would seem unnecessary to sustain the position that a decree restoring a deed void on its face is erroneous. A party invoking the power of the court must have some real cause to maintain and some right to protect. It seems almost axiomatic that a party cannot come into court to protect or restore a mere nullity-an instrument void on its face. If it clearly appears upon the face of the record that the instrument

to be restored was absolutely void, no decree of restoration should be made."

Hudspeth v. Thomason (1871) 46 Ala. 470, a case not within the scope of this annotation, it was said that if a conveyance to a purchaser is accidentally lost or destroyed so that he is unable to show a good title, a court of chancery has jurisdiction to compel the vendor to make another convey

ance.

In Chapman v. Chapman (1799) 4 Call (Va.) 430, another case beyond the scope of this annotation, it appeared that one on whom devolved all the lands of his father conveyed certain portions thereof to his brother George by several deeds, following certain promises on the part of his mother. The deed in one instance was returned for further acknowledgment, and the grantor refused to have it perfected until his mother had fulfilled her promises, and, on his discovery that she had put such fulfilment out of her power by conveying part of her property to the plaintiff, probably destroyed it, and later devised the land to his son, the mother conveying all her lands to the plaintiff and devising all her estate to him. The plaintiff petitioned for a conveyance of the land described in the destroyed deed. The court pointed out that the plaintiff, who claimed under his mother's contract, was bound by her breach of it, and that he had received from her compensation therefor. It was said: "In this view, the plaintiff's scale of equity certainly kicks the beam; nor will it be brought to repose by the maxim, he that has committed iniquity shall not have equity,' his suppression of the deed not proceeding from a fraudulent purpose, but as a justifiable guard against fraud and injustice meditated against him." Loss of deed as affecting rights.

In Hudson v. Hudson (1919) 287 III. 286, 122 N. E. 497, it appeared that a father had executed deeds distributing his property among his children, the deeds to take effect on the death of himself and wife, being deposited meanwhile with a bank. Sometime thereafter the grantor, so it appeared, removed from deposit the deed

which he had executed in favor of the plaintiff. At the time, the plaintiffs' bill was filed the grantor was dead, but not his wife, so that the plaintiffs were not entitled to possession. It was held that a court of equity has jurisdiction to require the heir of a grantor whose unrecorded deed has been destroyed, to execute a new conveyance. The court said: "The deed to Clifton A. Hudson was a gift, but equity will not for that reason deny any relief. Equity will not aid a volunteer to carry into effect an imperfect gift, or correct a mistake in, or decree the specific performance of, a contract not based upon a valuable consideration, but where a gift of real estate has been perfected by a legal conveyance, the property rights thus acquired will be protected and enforced. The delivery of the deed by the grantor was complete, and so was the grantee's right to have it remain in the possession of the custodian until by lapse of time the grantee became entitled to it. This was a property right, of which the grantee could not be deprived, and in seeking to have the deed restored he is not asking to have an incomplete gift completed, but to recover his property." The grantor's wife died during the pendency of the suit, and by her death the appellees became entitled to the possession of the deed, and the decree directing the execution and delivery of such a deed was affirmed.

In Orr v. Dunn (1916) 145 Ga. 137, 88 S. E. 669, the court said in a syllabus decision: "An heir at law of the grantee in an unrecorded deed conveying land has such an interest in the land as will authorize him to maintain an action to establish a copy of the deed after it has been lost."

And in the reported case (NICHOLSON V. NICHOLSON, ante, 548) it is said that in an action to restore a lost deed the pleading must disclose an interest in the property.

In Lawrence v. Lawrence (1860) 42 N. H. 112, a case not within the scope of this annotation, the court said: "It is true that a court of equity will not, in all cases of a lost deed, decree the execution of a new one; but if

such loss exposes the grantee to undue perils in the future assertion of his rights, such a decree is eminently proper, and, as we think, accords with the principles which govern this court in similar cases."

In Griffin v. Fries (1887) 23 Fla. 173, 11 Am. St. Rep. 351, 2 So. 266, the court said: "The bare allegation that a deed is lost is not sufficient ground to found a right to relief in equity. Fonbl. Eq. bk. 1, chap. 3, note h. The bill must lay some ground beside the mere loss of a title deed to justify a prayer for relief, as, that the loss obstructs the complainant's rights at law, or leaves him exposed to undue perils in the future assertion of such rights. Story, Eq. Jur. § 84. A court of equity has the power to decree a re-establishment of deeds which have become accidentally lost or destroyed, on the ground that otherwise the complainant's title would be defective or embarrassed." In that case, however, re-establishment of the deed was not asked, and so was not granted.

In Torrent Fire Engine Co. v. Mobile (1893) 101 Ala. 559, 14 So. 557, involving a bill to establish a title in case of a lost deed, the court said: "There can be no question of the authority of a court of chancery to reestablish a deed which has been lost or destroyed by accident; but it seems to be well settled that the mere loss of a deed is not always ground for coming into a court of equity for relief on account of such loss or destruction, for, if there is no more than that in the case, a court of law may afford just relief; since it will admit evidence of the loss and contents of a conveyance, just as a court of equity will do. So, to enable one to come in. to equity for relief in case of a lost deed, he must show that there is no remedy at law which is adequate and adapted to the circumstances of his case. "The bill,' says Story, 'must always lay some ground, besides the mere loss, to justify a prayer for relief, as, that the loss obstructs the rights of the plaintiff at law, or leaves him exposed to undue perils in the future assertion'—and it might