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foss 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 di. rected 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. Jernigan (1892) 110 N. C. 406, 14 S. E. 971, a case beyond the scope of this anno tation, 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
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
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 to be restored was absolutely void, no by the plaintiff was affirmed.
decree of restoration should be made." In Morris v. Parry (1908) 218 Mo. Hudspeth v. Thomason (1871) 46 701, 918 S. W. 430, an action to es- Ala. 470, a case not within the scope tablish a lost deed, the court stated of this annotation, it was said that if that in its opinion the deed in ques- a conveyance to a purchaser is accition conveyed no legal or equitable dentally lost or destroyed so that he title. In upholding the decree of the is unable to show a good title, a court court below in dismissing the bill, it of chancery has jurisdiction to compel was said: “We cannot see how the the vendor to make another conveyestablishment of the lost deed in any way affects plaintiff's title. At most, In Chapman v. Chapman (1799) 4 that deed would merely tend to show Call (Va.) 430, another case beyond that Parry participated in the locat- the scope
of this annotation, it ing of the county seat by removing an appeared that one on whom devolved apparent claim he had as entryman, all the lands of his father conveyed which entry was afterwards canceled certain portions thereof to his brother by the United States government. George by several deeds, following Vhen established, the deed would be certain promises on the part of his no muniment of title, and in point of mother. The deed in one instance was law it conveyed no estate." Equity returned for further acknowledgment, ought not to do useless things, said and the grantor refused to have it perthe court.
fected until his mother had fulfilled In Poling v. Poling (1906) 61 W. Va. her promises, and, on his discovery 78, 55 S. E. 993, wherein it appeared i that she had put such fulfilment out that a lost deed from a wife to a hus- of her power by conveying part of her band had been restored in a former property to the plaintiff, probably deproceeding, the court said: “By the stroyed it, and later devised the land bill in this cause, the plaintiffs point to his son, the mother conveying all her out that the deed restored by the de
lands to the plaintiff and devising all cree complained of was void, because
her estate to him. The plaintiff petimade by a wife to her husband while
tioned for a conveyance of the land they were living together, and in
described in the destroyed deed. The which he did not join; and that the
court pointed out that the plaintiff,
who claimed under his mother's condecree is erroneous, because it in ef
tract, was bound by her breach of it, fect restored such void deed. A deed
and that he had received from her of conveyance for land made by a wife
compensation therefor. It was said: to her husband while they are living
"In this view, the plaintiff's scale of together, in which he did not join, is
equity certainly kicks the beam; nor void. Smith v. Vineyard (1905) 58 will it be brought to repose by the W. Va. 98, 51 S. E. 871. Mullins v.
maxim, ‘he that has committed iniquiShrewsbury (1906) 60 W. Va. 694, 55 ty shall not have equity,' his suppresS. E. 736. The deed being void, was sion of the deed not proceeding from the decree restoring it erroneous for a fraudulent purpose, but as a justifithat reason? An argument would seem able guard against fraud and injusunnecessary to sustain the position tice meditated against him." that a decree restoring a deed void on Loss of deed as afecting rights. its face is erroneous. A party invok- in Hudson v. Hudson (1919) 287 ing the power of the court must have Ill. 286, 122 N. E. 497, it appeared some real cause to maintain and some that a father had executed deeds disright to protect. It seems almost axio- tributing his property among his chilmatic that a party cannot come into dren, the deeds to take effect on the court to protect or restore a mere death of himself and wife, being denullity-an instrument void on its posited meanwhile with a bank. Someface. If it clearly appears upon the time thereafter the grantor, so it apface of the record that the instrument peared, removed from deposit the deed
which he had executed in favor of the such loss exposes the grantee to unplaintiff.
At the time, the plaintiffs' due perils in the future assertion of bill was filed the grantor was dead, his rights, such a decree is eminently but not his wife, so that the plaintiffs proper, and, as we think, accords with were not entitled to possession. It the principles which govern this court was held that a court of equity has in similar cases." jurisdiction to require the heir of a In Griffin v. Fries (1887) 23 Fla. grantor whose unrecorded deed has 173, 11 Am. St. Rep. 351, 2 So. 266, been destroyed, to execute a new con- the court said: “The bare allegation veyance. The court said: “The deed that a deed is lost is not sufficient to Clifton A. Hudson was a gift, but ground to found a right to relief in equity will not for that reason deny equity. Fonbl. Eq. bk. 1, chap. 3, any relief. Equity will not aid a vol- note h.
The bill must lay some unteer to carry into effect an imper- ground beside the mere loss of a title fect gift, or correct a mistake in, deed to justify a prayer for relief, as, decree the specific performance of, a that the loss obstructs the complaincontract not based upon a valuable ant's rights at law, or leaves him exconsideration, but where a gift of posed to undue perils in the future real estate has been perfected by a assertion of such rights. Story, Eq. legal conveyance, the property rights Jur. § 84. A court of equity has the thus acquired will be protected and power to decree a re-establishment of enforced. The delivery of the deed by deeds which have become accidentalthe grantor was complete, and so was ly lost or destroyed, on the ground the grantee's right to have it remain that otherwise the complainant's title in the possession of the custodian un- would be defective or embarrassed.” til by lapse of time the grantee be- In that case, however, re-establishcame entitled to it. This was a prop- ment of the deed was not asked, and erty right, of which the grantee could so was not granted. not be deprived, and in seeking to have In Torrent Fire Engine Co. v. Mothe deed restored he is not asking to bile (1893) 101 Ala. 559, 14 So. 557, have an incomplete gift completed, but involving a bill to establish a title in to recover his property.” The grant- case of a lost deed, the court said: or's wife died during the pendency of “There can be no question of the authe suit, and by her death the appel- thority of a court of chancery to relees became entitled to the possession
establish a deed which has been lost of the deed, and the decree directing or destroyed by accident; but it seems the execution and delivery of such a
to be well settled that the mere loss deed was affirmed.
of a deed is not always ground for In Orr v. Dunn (1916) 145 Ga. 137, coming into a court of equity for re88 S. E. 669, the court said in a sylla
lief on account of such loss or de"An heir at law of the struction, for, if there is no more than grantee in an unrecorded deed convey
that in the case, a court of law may ing land has such an interest in the afford just relief; since it will admit land as will authorize him to main
evidence of the loss and contents of tain an action to establish a copy of
a conveyance, just as a court of equity the deed after it has been lost."
will do. So, to enable one to come in. And in the reported case (NICHOL
to equity for relief in case of a lost SON V. NICHOLSON, ante, 548) it is deed, he must show that there is no said that in an action to restore a lost remedy at law which is adequate and deed the pleading must disclose an adapted to the circumstances of his
“The bill,' says Story, 'must alIn Lawrence v. Lawrence (1860) 42
ways lay some ground, besides the N. H. 112, a case not within the scope mere loss, to justify a prayer for reof this annotation, the court said: lief, as, that the loss obstructs the It is true that a court of equity will rights of the plaintiff at law, or not, in all cases of a lost deed, decree leaves him exposed to undue perils in
new one; but if the future assertion'-and it might
bus decision :
interest in the property.
the execution of a
have been added, enjoyment-'of such instrument is entitled to be placed in rights. The bill in this case was not a position in which he will not be comsworn to, and it fails to show how, pelled to establish his rights by secwhen, or by whom the deed was lost. ondary evidence.” It contains no description of the con- In Haworth v. Haworth (1906) 123 tents of the deed, the title or interest Mo. App. 303, 100 S. W. 531, an action ccaveyed by it, or the consideration to establish deed of adoption, paid, and by whom paid. It merely which, together with the record therestates 'that the legal title to said prop- of, had been destroyed by fire, and erty was in fact conveyed to it by said which the plaintiff alleged had been city, and that the deed conveying the executed, the court said: “Defendsame was not recorded, and was, after ants contend that for the reason the the same was duly executed and de- petition fails to allege, in direct terms, livered, in some manner unknown to that defendants were claiming some complainant, lost or destroyed;' and property right in the estate of J. M. that complainant caused said lot to be Haworth adverse to plaintiff, it is inpurchased and paid for. It, therefore, sufficient to confer jurisdiction on the presents insufficient grounds for re- trial court, is without merit. The oblief on this phase of the case, and ject of the suit was not to establish the grounds of demurrer interposed, any right in the estate of J. M. Haquestioning relief based on this the- worth, which was then undergoing adory, were properly sustained."
ministration, but to restore lost eviLoss of deed as affecting evidence.
dence which may be admissible in any The mere destruction of a deed will
controversy that might arise between not give equity jurisdiction, but where
plaintiff and defendants on the final one in possession of land has lost the
distribution of the assets of the esevidence of his title, equity may es
tate. We think the judgment is for tablish the existence and contents of
the right party, and it is affirmed." the document. Virginia & W. V. Coal And in Shugars v. Shugars (1907) Co. v. Charles (1917) 251 Fed. 83, af
105 Md. 336, 66 Atl. 273, the court, firmed in (1918) 165 C. C. A. 599, 254
assuming the power to restore a lost Fed. 379.
deed, declared that where the restoraOne who has lost an unrecorded
tion of such a deed would not deprive deed and has thereby been deprived of
the defendants of anything of value, written evidence of her title will be
and would supply the plaintiff with granted re-execution of such deed. appropriate evidence of the title which Conlin v. Ryan (1873) 47 Cal. 71.
he already had, the doctrine of laches In Shores v. Withers (1913) 166
could not be invoked against the latCal. 403, 137 Pac. 7, it appeared that
ter. the defendant refused to re-execute an
But in the reported case (NICHOLunrecorded deed which had been de
SON NICHOLSON, ante, 548) the stroyed by fire, on the ground that it
court declares that where one seeks had been made with the understand
the restoration of a lost deed, the ing that it was not to take effect as pleading must disclose an interest in a delivery, or to be recorded, until the the property in question, as distinpayment of a certain sum had been guished from an interest in the inmade. This point of payment was strument or evidence of title; that held to be immaterial, the object of courts of equity will not restore valuethe proceeding being to restore the
And in reviewing the record. Such instruments, said the opinion in the case of Jacobson v. court, should be restored, even though Roman (1920) 57 Mont. 299, 188 Pac. voidable, and the person having a de- 138, the court interprets it as holding fense not apparent on the face of the that one of the jurisdictional facts in instrument may assert it as he might such an action is that "the title of the have done if the instrument had not grantee” is injured by the absence of been lost or destroyed. The court the instrument. And it is pointed out said: “The owner of the destroyed that the complaint in the case before
the court contains no allegation of Dull v. Rohr (1895) 13 Misc. 530, title in the plaintiff, nor any to the 35 N. Y. Supp. 523, was an action to effect that the plaintiff's grantors compel the execution of a conveyance were interested in the property when by the defendants. It appeared that the deed was executed.
the premises in question had been Effect of responsibility for loss of deed.
the property of an intestate who died
leaving a husband and six children, In Lancy v. Randlett (1888) 80 Me.
including one Josephine Rohr, the 169, 6 Am. St. Rep. 169, 13 Atl. 686,
children conveying the same to their wherein the petitioners sought to be
father by a quitclaim deed for a confirmed in their title to land, clouded by loss of their deed prior
nominal consideration. This deed was
never recorded and, according to the to its recordation, the court said:
plaintiff's claim, was lost, the grantee “Equity withholds relief in causes
therein conveying the premises to the when the party asking it deliberately
plaintiff for value. Josephine Rohr, makes the mischief from which he
who later died, leaving her husband suffers. If the loss of a deed be ac
and children, the defendants, had recidental and without the fault of the
fused to execute a quitclaim deed of grantee, thereby subjecting his title
the premises in favor of the plaintiff, to hazard and peril from which the
expressing the opinion that one was law gives him no adequate relief,
sufficient. The court said: “We are equity will afford that relief most
met with the broad question whether, suited to the necessities of the case.”
when a person who, without obligaThe bill was held to be insufficient for
tion to deed, does so for a nominal the want of equity in failing to show
consideration (in effect a gift), and the circumstances of the loss of the
through the carelessness or folly of deed.
the grantee the deed is not recorded, A complainant whose bill, not
but is lost, and the grantee deeds to sworn to, alleges that he has lost a
another for value, that other, for the deed delivered to him by the defend
purpose of supplying a missing link ant, but contains no description of in his record title, can compel the the contents of the deed, or of the heirs of the first grantor to deed to title or interest conveyed thereby, and him." The court distinguished the prays that the defendant shall be com- case from Kent v. Church of St. Mipelled to make him another, presents chael (1892) 136 N. Y. 10, 18 L.R.A. no grounds for equitable relief. See 331, 32 Am. St. Rep. 693, 32 N. E. 704, Hoddy v. Hoard (1851) 2 Ind. 474, 54 pointing out that in that case the lost Am. Dec. 456, wherein the court also deed involved had been executed purmade the following remark:
suant to a contract of sale, while in know of no principle in equity juris- the case at bar there never had been prudence by which a grantor can be any obligation on the part of Joserequired to execute a second deed, phine Rohr to give a deed to her father, where one previously executed has or to the plaintiff. In conclusion it been lost or destroyed while in the
was · said:
"Upon what principle, possession of the grantee. Courts of therefore, can Josephine or her heirs equity will, indeed, establish the pos- be called upon to repeat the volunsession of a party who claims title
tary act of conveying her interest in under a deed which has been lost or the property, when neither she nor destroyed, or grant such other relief any of her heirs have made, or now as the particular circumstances of the
make, any claim to the premises? The case may require; but this ought not court is asked, in effect, in this action, to be done at the expense of him who
to assert the principle that whenever, executed the lost instrument, for he is
upon search of the records, a party under no obligation to preserve the
discovers a missing link in his title evidences of the grantee's title, or to
to real estate, he may come into court furnish a new deed if the deed origi
and compel a conveyance from anynally delivered to him should be lost.”
one who may appear to have the rec