Yates, J.
delivered the opinion of the court. The first question presented in this cause is, whether it was competent for the defendant to give parol evidence of the contents of the deed from James Neely to Matthew Gillespy and wife, and of the deed from Charles Clinton and George Denision, commissioners appointed by the court of common pleas, of Ulster county, to make partition of the premises in question to Matthew Gillespy.
It is evident, from the testimony in this cause, that those deeds were never in the possession or control of the defendant. The premises in question were conveyed to him by Matthew Gillespy, who was answerable to him on failure of the title, and being liable over in value, as warrantor, he unquestionably retained them in his hands, which he had an undoubted right to do, as a protection against claims for the recovery of the property which might afterwards be attempted. If, however, by intendment of the law, they are not, in strictness, to be deemed in the possession of the opposite party, it appears that Matthew Gillespy is the father of one of the lessors, and his son had access to his papers, after his decease, and before the granting of administration to the widow. These additional facts furnish, at least, strong presumptive evidence, that those deeds are either destroyed, or in the possession of the opposite party. It is evident that they have never been in the possession of the defendant ; so that, their non-production at the trial cannot be attributed to laches on his part, especially as notice, with a view of having them produced, has been duly served on the opposite party, which was the only course the defendant could take to ■avail himself of the legal benefit now claimed by him.
[454]*454A rigid adherence to the ancient rule of law on this subject bas, by experience, been found, not unfrequently, to be attended ,with manifest injustice. A relaxation of this rule has, there-bore, been introduced, depending in some measure upon the particular circumstances of the case; for it is, sometimes, impossible, when the destruction of an instrument has taken place, to obtain positive proof of the fact. To show the extent of this relaxation, the case of Read v. Brooknan was cited. (3 Term Rep. 151.) It was there determined that a deed might be pleaded, as lost by time and accident, without profert. In Beckford v. Jackson, (1 Esp. Rep. 337.) the plaintiff declared on a deed, and, to avoid profert, stated that it was lost by time and accident. The defendant pleaded first, non est factum, and secondly, that the deed was not lost or mislaid ; on both of which pleas issue was joined. On the trial, Lord Kenyon said, that to prove the issue, as to the loss of the deed, it was necessary to give evidence of a search where it probably might be found.
It appears, in the case before us, that an ineffectual search had been made for those deeds, among the papers of Matthew Gillespy, in the trunk where his papers were kept, the place in which it was most probable to find them. This, then, ought to be deemed sufficient proof of loss, or that they are in the possession of the opposite party. In either case, evidence of their contents would be admissible; and, on that subject, as to the deed of James Neely to Matthew Gillespy and wife, as well as the manner of executing it, one of the subscribing witnesses, James Hunter, is explicit. He says the deed was read aloud, at the request of old Mr. Neely, who declared it was as good a deed as George Clinton, the counsel employed to draw it, could write ; that he executed it in the usual form, and that not one word was said respecting a conditional delivery. The circumstance of his daughter, Jane, returning the deeds and other papers, into the chest from whence they were taken, does not prove that the deed was delivered as an escrow. This chest was without a lock, and appears to have been in the use and occupation of the family, generally, and must have been accessible to every member of it. The deed was not delivered to a third person, nof1 were any conditions' stated at the -time. The executing of the bonds shows what was the consideration of the deed. He thought proper to cause Matthew Gillespy to' execute them, to [455]*455secure the performance of the contract between them, which was the real consideration in the deed; and if those obligations did not secure a maintenance for him and his wife, it can only be attributed to his own folly or negligence. They were, however, maintained by him, as long as they lived. As far, therefore, as equitable considerations can influence the decision of the court, on this point, it appears to be just and right that the heirs of Jane Gillespy should enjoy the avails of this property» Ann Hunter, who had given her testimony on a former trial of this cause, (the evidence of which was now correctly admitted,) it appears, was not present at the time those papers were executed. Her evidence, therefore, as to her subsequent understanding and conversations, cannot destroy the explicit and direct testimony of a subscribing witness, who swears to the due execution of the deed, which passed the property in question to Jane Neely, and her heirs.
The next inquiry will be as to the proceedings in partition, to the regularity and validity of which several objections are raised, as well as to the competency of the proof, in relation to the execution and contents of the deed alleged to have been given by the commissioners appointed by the court. I shall examine them in their order.
The answer given to the objection that the application for partition was by infants, and not authorized by the statute, is, in my mind, conclusive. Barbara, one of the daughters of Jane Gillespy, and the wife of John Neely, (as appears by the proceedings,) was an adult, and she joined with her husband in the application for partition; and by the 15th section of the act of If 85, under which those proceedings were had, it may be done at the instance of one or more of the parties interested in the lands to be divided. This puts that objection at rest. The guardian having purchased the premises, does not affect the proceedings ; nor can they, on that account, be deemed fraudulent. It was a public sale to the highest bidder, authorized by statute, and under the sanction and inspection of a court. Without circumstances of direct fraud, therefore, to support such an allegation, the deed is valid in law. But, in this case, no collusion appears ; an adequate consideration has been received by the guardian for the use and benefit of the infants; and his not paying the money into the hands of the commissioners can be no objection. It appears they delayed giving the deed [456]*456to him, until the consideration was satisfactorily secured; and it is not improbable that Fankeuren, who purchased the proper* ty, would not have done it without receiving a conveyance direct from him, subjecting the title to his personal responsibility.
The doctrine laid down in gugdeids Lam of Vendors, (388 to 395.) cited in the argument by the plaintiff’s counsel, does not reach the present case. The sale here was not only public, and to the highest bidder, but made by the commissioners, according to the order of the court.
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Yates, J.
delivered the opinion of the court. The first question presented in this cause is, whether it was competent for the defendant to give parol evidence of the contents of the deed from James Neely to Matthew Gillespy and wife, and of the deed from Charles Clinton and George Denision, commissioners appointed by the court of common pleas, of Ulster county, to make partition of the premises in question to Matthew Gillespy.
It is evident, from the testimony in this cause, that those deeds were never in the possession or control of the defendant. The premises in question were conveyed to him by Matthew Gillespy, who was answerable to him on failure of the title, and being liable over in value, as warrantor, he unquestionably retained them in his hands, which he had an undoubted right to do, as a protection against claims for the recovery of the property which might afterwards be attempted. If, however, by intendment of the law, they are not, in strictness, to be deemed in the possession of the opposite party, it appears that Matthew Gillespy is the father of one of the lessors, and his son had access to his papers, after his decease, and before the granting of administration to the widow. These additional facts furnish, at least, strong presumptive evidence, that those deeds are either destroyed, or in the possession of the opposite party. It is evident that they have never been in the possession of the defendant ; so that, their non-production at the trial cannot be attributed to laches on his part, especially as notice, with a view of having them produced, has been duly served on the opposite party, which was the only course the defendant could take to ■avail himself of the legal benefit now claimed by him.
[454]*454A rigid adherence to the ancient rule of law on this subject bas, by experience, been found, not unfrequently, to be attended ,with manifest injustice. A relaxation of this rule has, there-bore, been introduced, depending in some measure upon the particular circumstances of the case; for it is, sometimes, impossible, when the destruction of an instrument has taken place, to obtain positive proof of the fact. To show the extent of this relaxation, the case of Read v. Brooknan was cited. (3 Term Rep. 151.) It was there determined that a deed might be pleaded, as lost by time and accident, without profert. In Beckford v. Jackson, (1 Esp. Rep. 337.) the plaintiff declared on a deed, and, to avoid profert, stated that it was lost by time and accident. The defendant pleaded first, non est factum, and secondly, that the deed was not lost or mislaid ; on both of which pleas issue was joined. On the trial, Lord Kenyon said, that to prove the issue, as to the loss of the deed, it was necessary to give evidence of a search where it probably might be found.
It appears, in the case before us, that an ineffectual search had been made for those deeds, among the papers of Matthew Gillespy, in the trunk where his papers were kept, the place in which it was most probable to find them. This, then, ought to be deemed sufficient proof of loss, or that they are in the possession of the opposite party. In either case, evidence of their contents would be admissible; and, on that subject, as to the deed of James Neely to Matthew Gillespy and wife, as well as the manner of executing it, one of the subscribing witnesses, James Hunter, is explicit. He says the deed was read aloud, at the request of old Mr. Neely, who declared it was as good a deed as George Clinton, the counsel employed to draw it, could write ; that he executed it in the usual form, and that not one word was said respecting a conditional delivery. The circumstance of his daughter, Jane, returning the deeds and other papers, into the chest from whence they were taken, does not prove that the deed was delivered as an escrow. This chest was without a lock, and appears to have been in the use and occupation of the family, generally, and must have been accessible to every member of it. The deed was not delivered to a third person, nof1 were any conditions' stated at the -time. The executing of the bonds shows what was the consideration of the deed. He thought proper to cause Matthew Gillespy to' execute them, to [455]*455secure the performance of the contract between them, which was the real consideration in the deed; and if those obligations did not secure a maintenance for him and his wife, it can only be attributed to his own folly or negligence. They were, however, maintained by him, as long as they lived. As far, therefore, as equitable considerations can influence the decision of the court, on this point, it appears to be just and right that the heirs of Jane Gillespy should enjoy the avails of this property» Ann Hunter, who had given her testimony on a former trial of this cause, (the evidence of which was now correctly admitted,) it appears, was not present at the time those papers were executed. Her evidence, therefore, as to her subsequent understanding and conversations, cannot destroy the explicit and direct testimony of a subscribing witness, who swears to the due execution of the deed, which passed the property in question to Jane Neely, and her heirs.
The next inquiry will be as to the proceedings in partition, to the regularity and validity of which several objections are raised, as well as to the competency of the proof, in relation to the execution and contents of the deed alleged to have been given by the commissioners appointed by the court. I shall examine them in their order.
The answer given to the objection that the application for partition was by infants, and not authorized by the statute, is, in my mind, conclusive. Barbara, one of the daughters of Jane Gillespy, and the wife of John Neely, (as appears by the proceedings,) was an adult, and she joined with her husband in the application for partition; and by the 15th section of the act of If 85, under which those proceedings were had, it may be done at the instance of one or more of the parties interested in the lands to be divided. This puts that objection at rest. The guardian having purchased the premises, does not affect the proceedings ; nor can they, on that account, be deemed fraudulent. It was a public sale to the highest bidder, authorized by statute, and under the sanction and inspection of a court. Without circumstances of direct fraud, therefore, to support such an allegation, the deed is valid in law. But, in this case, no collusion appears ; an adequate consideration has been received by the guardian for the use and benefit of the infants; and his not paying the money into the hands of the commissioners can be no objection. It appears they delayed giving the deed [456]*456to him, until the consideration was satisfactorily secured; and it is not improbable that Fankeuren, who purchased the proper* ty, would not have done it without receiving a conveyance direct from him, subjecting the title to his personal responsibility.
The doctrine laid down in gugdeids Lam of Vendors, (388 to 395.) cited in the argument by the plaintiff’s counsel, does not reach the present case. The sale here was not only public, and to the highest bidder, but made by the commissioners, according to the order of the court.
The circumstances of this case would warrant a jury to presume, that the deed alleged to have been given by the commissioners had been duly executed by them, in pursuance of the order of the court of common pleas; and if so, this court are bound to presume it. The objections stated in the argument, that the period of possession is insufficient to authorize such a presumption cannot prevent it. It is correct here to presume that they did their duty.
In the case of England, ex dem. Syburn, v. Slade, (4 Term Rep. 682.) the court determined, that in the case of a plain trust, where the trustees were directed to convey to a devisee on his attaining 21 years, the jury might be directed to presume a conveyance at any time afterwards, though considerably less than 20 years. Lord Kenyon, in giving his opinion, to which the other judges assented, says, “ There is no reason why the jury should not have presumed a conveyance from the trustees to him, upon his attaining the age of 21, in pursuance of their trust.” But without this presumption, I am inclined to think, from the reasons before stated, that the evidence of its execution and contents was properly admitted, and is sufficient to satisfy a jury of the facts, Charles Clinton, one of the commissioners, says, he thinks the deed was executed by them, soon after the sale, and before the last rule of court on the subject. His impression is, that it was kept back from Gillespy until the sale to Fankeuren, who (as the witness understood) had secured the consideration money to him, as guardian. He also recollects, that James Wilkin was to draw the deed; and Wilkin, who was also examined as a witness, declares, that the deed from Matthew Gillespy to Benjamin Fankeuren, for the premises, was in his handwriting. He was the counsel who conducted the proceedings in partition, and well remembers that [457]*457lie wrote a deed, to be signed by the commissioners, to Gillespy, the draft of which was in his possession; and he was certain he never should have drawn the deed from Gillespy to Vanheuren, if the commissioners had not previously conveyed to Gillespy.
By the testimony of those two witnesses, then, the execution and contents of the conveyance were sufficiently substantiated. Admitting the objection, however, to the competency of this evidence, I think it has been satisfactorily shown, that the execution of the deed by the commissioners ought to be presumed.
On all the points, therefore, raised by the plaintiff’s counsel, we are of opinion, that the cause is with the defendant, and that judgment ought to be entered accordingly.
Judgment for the defendant.