The law, proceeding upon the rule that the best evidence the nature of the thing is capable of shall be produced, requires a person who ought to have the custody of a deed, to exhibit it to the Court, in the necessary deduction of his title. And in such case, a copy from the register’s office, or even inferior evidence, has, by the constant practice of this State, been admitted upon the oath of the party, that the original is lost or destroyed: If it be in the adversary’s possession, notice to produce it must be given to authorise the introduction of secondary evidence. But where the law does not suppose a party to have custody of the deed, either as party to it, or as privy in representation, it admits, at once, the inferior proof, without requiring his oath as to the original.
The cases in which a party ought to have custody of the original deeds, and where, consequently, he will be compelled to produce them, or account for their absence, are stated in Buckhuerst’s case, 1. Rep. 1. where land is sold without warranty or with warranty only against the feoffor and his heirs, the purchaser shall have all the deeds as incident to the land, in order that he may the better defend it himself—But if the feoffor be bound in warranty and to render in value, he must defend, the title at his peril, and the feoffee is not to have custody of any deeds that comprehend warranty, of which the feoffer may take advantage. A purchaser at a sheriff ’s sale may give the copies in evidence, where it is necessary to deduce the title of him whose land was sold, because he is only privy in estate, and is not supposed to have custody of the originals.