The first main proposition to be determined: Should the demurrer of plaintiffs to the counterclaim of defendants be sustained? We think so. The law in regard to “Slander of property” is stated in Newell Slander and Libel, 4th ed., part sec. 160, p. 196, as follows: “It permits an action to be brought against anyone who falsely and maliciously defames property, either real or personal, of another, and thereby causes him some special pecuniary damage or loss. As in all other actions dependent upon special damages there must be injury, and damage, the injurious words falsely and maliciously spoken, and the damage, the consequent pecuniary loss to the party whose property is defamed. There can be no action except for the injury, the slanderous words, and no recovery except for special damages.” The counterclaim broadly taken is an independent separate cross-action,, not related to the main cause of action stated in the complaint.
The allegations in defendants’ counterclaim set out fully the slander of title to the 500-acre, more or less, tract of land and demand for damages. This counterclaim is not to quiet title to the locus in quo— the five (5) acres more or less claimed by plaintiffs — as in McLean v. McDonald, 173 N. C., p. 429, but is an independent separate cross-action in tort and does not come under a most liberal construction of C. S., 519, 521 and 522. Devries v. Warren, 82 N. C., p. 356; Gibson v. Barbour, 100 N. C., 192; Smith v. Young, 109 N. C., p. 224; Yellow *159 day v. Perkinson, 167 N. C., 144; Cohoon v. Cooper, 186 N. C., 26. See Shearer v. Herring, 189 N. C., 460.
It is said in Milling Co. v. Finlay, 110 N. C., p. 412: “It is not necessary that we consider whether there was any evidence sufficient to go to the jury to support defendants’ counterclaim, for we concur with his Honor that the slander charged as the basis thereof was not a counterclaim that could be pleaded to this action. The plaintiff complains that the defendants being indebted to it, accepted a draft drawn on them by the plaintiff and have failed to pay it. The defendants allege that the plaintiff slandered them as to their pecuniary standing, and injured their credit and business and seek damages therefor by way of counterclaim. This did not arise out of contract, and therefore could not be pleaded under subsection 2 of section 244 of The Code (C. S., 521) ; nor could it be pleaded under the first subsection thereof, because it did not 'arise out of the contract or transaction which was the ground of the plaintiff’s claim,’ nor was it connected with the subject of the action’ — the contract made by the acceptance of plaintiff’s draft. Byerly v. Humphrey, 95 N. C., 151.” The demurrer to the counterclaim should have been sustained.
The second main proposition to be determined: Was the lease, assignment or transfer and affidavit admissible as evidence? We think so. It is taken for granted, from the record, that J. K. Irby and J. K. Irby, Jr., are one and the same person. The deed from Chas. Burleson to J. W. Bowman, was made 12 May, 1872, and the same day acknowledged by the grantor before the probate judge and ordered to be registered, and duly recorded 18 October, 1872, and was a necessary link in the chain of title on the part of plaintiffs. It refers to a lease to Heap and Olapp to make certain the description of the land for which plaintiffs bring this action. The record discloses “plaintiffs admitting that said deed was a necessary link in their chain of title connecting with the common source and also admitting that the purported lease, transfer and affidavit, as hereinbefore set out, were lost and the originals could not be produced in evidence.”
The purported lease was made on 17 August, 1871, by Chas. Burleson to J. K. Irby. The description in the lease corresponds in substance to the description to the land set forth in the complaint, for which the action is instituted. On the lease from Burleson to Irby is the following: “I hereby transfer all my right, title and interest to the within lease to Heap and Clapp for value received. This 19 August, 1871. J. K. Irby, Jr.”
Then there is an affidavit from Irby, dated 18 July, 1872, sworn to before the clerk. Among other statements is the following: “That he, the said J. 3L Irby, obtained the said lease from said Burleson as the *160right of Heaj) and Clapp, and although he put his own name in the lease as lessee that he was only an agent, as aforesaid, and that Heap and Clapp were and are the real lessees and the only parties interested, and that Charles Burleson so understood the matter at the time that the above lease is the one or the paper described and referred to in a conveyance made by Charles Burleson to J. W. Bowman on 12 May, 1872, and the only lease which' Heap and Clapp had from Burleson for said mines and that Heap and Clapp have been operating said mines for some time under said lease.”
The deed, lease, assignment or transfer and affidavit follow each other in the order named, and all are recorded on 18 and 19 October, 1872. The lease, assignment or transfer and affidavit were all recorded as parts of the same instrument on 19 October, 1872. It seems that this is indicated by the record, but at least are recorded in consecutive order at the same time.
It is contended by plaintiffs that although the originals of the lease, assignment or transfer and the affidavit (the latter argued by plaintiffs a declaration of trust), are all lost, they are admissible as an ancient record. If they are not admissible as tending to make certain the description in the Burleson deed to Bowman, the action of plaintiffs cannot be sustained. We think that although the originals are lost and not required to be recorded, yet spread on the records for 55 years, in the office of the register of deeds, is such an ancient record that imports verity and truth and ordinarily admissible at least as prima facie evidence.
The principle is stated thus in Wigmore on Evidence, 4 Vol. 2 ed., part sec. 2143, subsec. 5, p. 569: “Where the alleged ancient original is lost (or otherwise unavailable), and a purporting official record is offered, made more than thirty years before, and certifying the deed’s contents and execution, but inadmissible as an official record (ante, 1648-1649), because not made in accordance with statutory provisions may not this ancient record-copy serve as sufficient evidence of genuineness ? • It is apparent that the case is not only as strong as the preceding one, but is stronger in two respects, namely, the defects of the record are in a measure technical only and it still is entitled to some consideration as an official statement, and the long publicity of it has- given ample opportunity for correction and opposition if any just ground existed for doubting the original authenticity. Accordingly, there has been a general disposition, on one ground or another, to accept such an ancient record, though otherwise inadmissible, as sufficient, after the lapse of time. . . . This conclusion has been usually accepted. The rulings to the contrary seem rarely, if ever, to have gone upon any supposition that the ancient document rule was in itself impossible to apply to a *161copy, but rather upon the lack of confirming circumstances in the case in band. Moreover, the fact of possession of the land, as a confirming circumstance, seems often to be here insisted upon, irrespective of its general requirement.” Cedar Works v. Pinnix, 208 Fed., 785; Davis v. Higgins, 91 N. C., p. 382; Nicholson v. Lumber Co., 156 N. C., 59. The execution of the lease was duly proven and certified to be registered, and the lease, assignment or transfer and affidavit, are all recorded in consecutive order. The hearsay rule gives way to the ancient doctrine rule and is admissible ordinarily at least as prima facie evidence of the truth of the contents.
For tbe reasons given tbe judgment of tbe court below is