Johnson v. Hollamon

2 Posey 294

• Court: Texas Commission of Appeals
• Decided: July 1, 1880
• Docket: No. 5500
• Status: Published

Opinion

The sufficiency of an affidavit sought, to be made the basis for the admission of parol evidence of the execution and contents of a lost instrument is principally addressed to the discretion of the trial court. A party ordinarily has the right to require his antagonist to produce the primary evidence of such facts as he may propose to establish in the cause; but where, by reason of the loss or destruction of the primary evidence, it cannot be had, then by an appropriate affidavit showing suqh loss or destruction, and a reasonable and proper search and failure to find the same, the court may admit parol or secondary evidence of the execution and contents of the instrument. In passing upon the sufficiency of the affidavit all the attending circumstances should be considered, such as the character and importance óf the instrument, the time when executed, whether recently or otherwise, the usual place of deposit of such instrument, as well as the time, place and character of the search. When that is insisted upon by the opposite part)'' the affidavit of the supposed custodian is usually required. Where the respective owners have .agreed to and fixed a common boundary line between their respective lands, and in which they both have acquiesced for a number of years, a subsequent purchaser from one of the parties to the original agreement will not be heard to complain that the line as agreed upon ivas not in strict accordance with the line as run in making the original survey.

Affirmed.