We shall first consider the exclusion of the original deed from Fleming and the Bernards to John Bryan, and the original deed from John Bryan to Samuel Sackett. We are of opinion that they should have been admitted in evidence. They have been certified to and inspected by this court. Their appearance affords strong evidence of their genuineness and antiquity, and they are free from any badge that would excite suspicion of fraud or forgery. In support of their genuineness it was shown that a short time before the trial in the circuit court they were discovered by one of the plaintiffs' attorneys in the office of the clerk of the circuit court of Greenup county, Kentucky, among the original papers of a suit in that court brought by one James Hughes v. Heirs of Thomas Shore, on July 15, 1816, to quiet his title to 16,000 acres of land in Greenup county, part of the lands conveyed by the deed of William Fleming and the Bernards to John Bryan. The deeds and the original papers in that suit were produced by a clerk of the Greenup circuit court in obedience to a subpoena duces tecum. The record of this case was admissible against persons, not parties or privies, to prove the collateral fact of the antiquity of the original deeds offered in evidence and to account for their custody. Barr v. Gratz, 4 Wheat. 220.
The bill of Hughes averred that he derived title under the patent to Charles Fleming, and by virtue of the devise in his will to William Fleming and the Bernards, and the deeds of William Fleming and the Bernards to John Bryan and of John Bryan to Samuel Sackett. The complainant Hughes offered by his bill 'to produce said patent and deeds showing the deduction of title in proper time, or whenever the court should require it.' The two deeds mentioned in the bill of complaint filed by Hughes correspond with and appear to be the two original deeds, namely, the deed from William Fleming and the Bernards to John Bryan, and the deed from John Bryan to Samuel Sackett, offered in evidence by the plaintiffs in this case, which were found among the other papers in the case of Hughes v. Heirs of Shore. These deeds were necessary exhibits and evidence in the case to entitle Hughes to the relief prayed for. They were produced from the files of the highest court of the county where the lands were situate, from the custody of an officer charged by law with their care and safe-keeping, where they had been placed for a necessary and proper use, and from which they could not be withdrawn without the order and consent of the court. Their custody was therefore accounted for, and was shown to be proper and beyond suspicion.
It further appeared that upon the trial of the case of Hughes v. Shore's Heirs, on July 8, 1825, the patent to Charles Fleming from the commonwealth of Virginia for 16,191 acres of land, the will of Charles Fleming, and the said deed of William Fleming and the Bernards, trustees, to John Bryan, were offered in evidence. The latter was rejected, 'because,' as the bill of exceptions states, 'the certificate and seal of the mayor of Philadelphia' was 'not sufficient to authorize it to be read, and because the same could not be read as a recorded deed, not having been recorded within the time prescribed by law;' and 'because, by rejecting this deed, complainants' chain of title was broken, and they could not further progress with their evidence, the court rendered a decree dismissing their bill.' It is therefore made clear by the evidence offered that at least as early as the year 1825 the deed of William Fleming and the Bernards to John Bryan was on file in the circuit court of Greenup county, and it may be safely inferred that the other documents mentioned by Hughes as his muniments of title were also on file in the same court at the same time, and that all the deeds remained in the custody of the court down to the time when they were produced by the clerk under the subpoena duces tecum issued in this case, a period of 55 years.