Taylor v. McIrvin

Citations

• 94 Ill. 488

Syllabus

<p>1. Secondary evidence—notice to produce. Where the proof shows that the opposite party has not a deed in his possession, no notice to him to produce the same is necessary, to admit parol evidence of its contents. Proof of the loss of the deed is sufficient.</p> <p>2. Same—diligence of search for lost deed. Where the grantor of land in the State of Iowa, after the delivery of the deed in this State with covenants of warranty, took the deed with him to have the same recorded in the proper county in Iowa, and on his return said it had been recorded, and some six months afterwards, when informed that it had not been recorded, stated that it was on file with the recorder, but that he had forgotton to pay the fees for recording, and on the trial he testified he had left the same with the recorder in Iowa, whose name he thought was Morgan, and the opposite party produced an affidavit of one Beach, the then recorder, stating that no such deed was on file, it was held, that there was no error in admitting secondary evidence of the contents of the deed. If the grantor had informed the grantee, or his agent, in apt time of the name of the person with whom he left the deed, it may have been that proper diligence would have required the grantee to have made inquiry of such person, but giving his name on the trial was too late to require this.</p> <p>3. Same—loss of deed may be shown by affidavit. As to matters directly in issue, the testimony of witnesses must be taken in open court or upon deposition, so as to afford an opportunity of cross-examination, but as to some collateral matters, among which is the loss of a document, affidavits taken ex parte are competent evidence.</p> <p>4. Witness—not bound to criminate himself. Where a witness has testified that whatever judgment might be recovered was for his benefit, it is a proper question, to discredit his testimony, to ask him whether he had not gone through bankruptcy without mention of the claim in dispute in his schedule