McRAE, Adm'r. v. PEGUES, Adm'r, 4 Ala. 158

GOLDTHWAITE, J. 1. The defendant objects that no reversal of this judgment can be had, even after it may be ascertained to involve material errors, because the plaintiff in the Court below has omitted to set out his interest to litigate' any questions with the defendant. This defect cannot, in our opinion, avail the defendant, because it was his duty, a's' it clearly was his right,to require the other party to show by what right he claimed to call for a distribution.

The practice in the Ecclesiastical and Admiralty Courts, is for the party claiming a right to litigate to propound his interest, and such, strictly speaking, is the proper course in our Orphans Courts, but it is now perhaps too late to insist on'the application of rigid’ rules to such proceedings; not that they would be otherwise than beneficial, but because the laxity of practice has become so general-and so inveterate, that much expense, and possibly injury, would1 arise by the delay of judgments on mere technical grounds.

All that can now be done without express legislation, is so to mould the practice, that the rights of all may be preserved. We apprehend the cases are very few and rare- that questions of the sort'raised on this record are ever litigated by those who have no interest in them — and therefore all that justice demands is, that the other party may be permitted to require the person who seeks to litigate such Or similar matters; to propound his interest. This if not shown in the first instance, upon; the application to the Court can always be called oiit by a'precise exception.

When the interest is propounded it can either be admitted or controverted as any other allegation, but' it never can form any part of the inquiry, when an issue is made up upon the merits. 2. The question which is made as to'the'sufficiency of the preliminary proof of the loss of the original deed, in order to let in either parol proof of its contents, or a copy, was determined by this Court, in Mordeca v. Beal, [8 Porter, 529,] and again in Swift v.

Fitzhugh, [9 Porter, 39.] In both these cases, as in this, the utmost possible diligence to trace the paper was not shown, but a reasonable presumption of its loss was afforded, and every presumption rebutted that it was withheld from the jury. The party who had the custody of the deed, placed it in the post office addressed to another person, and this last deposes that it was never received by him. Subsequent application is made personally to both post offices, and by letter at the General Post Office, but at none of these places can it be found.

We cannot'conceive a clearer case for the admission of secondary evidence. 3. Doubtless it would be irregular to give parol evidence of the contents of a deed, if the party was shown to have knowledge of a true copy; but nothing of that kind is shown by the evidence — the witness.was permitted to give evidence of its contents — whether these contents were proved by the exhibi-bition of a copy, or whether the witness spoke from his recollection of the deed, does not appear.

The former, however,is much more probable than the latter; and it was the duty of the plaintiff to render this matter entirely clear, by questioning the witness, if he desired, upon it, to raise an exception. [Carson v. The State Bank, [June Term, 1842, p. 148. J 4. It is said that no preliminary evidence could authorize the admission of the contents of this deed, because it was inoperative and void. This is a question not made at the trial of the cause, and therefore could not now be properly raised— but as it is somewhat involved in the charge given by the Court, we shall proceed to consider it.

The enacting clause of our statute of frauds declares, “that every gift, grant or conveyance of lands, tenements or heredita-ments, goods or chattels, or any rent, common or profit, out of the same by writing or otherwise; and every bond, suit, judgment or execution, had, made or contrived of malice, fraud, covin, collusion or guile,to the intent or purpose to delay, hinder or defraud creditors of their just and lawful actions, &c., or to deceive those toho shall purchase, &c., shall be from henceforth deemed and taken only as against the person or persons, &c., whose debts, &e., by such guileful and covinous devises and practices as aforesaid, shall, or might be, in any way disturbed, &c., to be clearly and utterly void.” It then proceeds further to declare, that if any conveyance be of goods and chattels, it shall be fraudulent, within this act, unless recorded, &c.

Under the terms of this statute it is difficult to conceive how any doubt could ever have been entertained that the deed was good as between the parties, though never recorded. The object of this statute is to protect creditors and subsequent purchasers, whether with or without notice. [Myers v. Peak, adm’r, 2 Ala. Rep. 640; Oden v. Stubblefield, ib. 684.] As to these two classes of persons — deeds not acknowledged or proved in the manner required are void — but are so only as to them.

It seems to us impossible to give any construction to this statute, without departing from its clear intention, which will avoid a voluntary deed, except at the instance of a creditor or subsequent purchaser. Our statute is almost a copy from that of Virginia, and the same construction has there been given. [Lund v. Jeffries, 5 Rand. 211; see also Lightfoot v. Colgin, 5 Munf. 42.] 5.

The request of the plaintiff for the specific charges which were refused, seems to be predicated upon the idea that delivery is as essential to the gift of a personal chattel, when the title is conveyed by deed, as it certainly is when the gift is evidenced by parol merely. The instructions given assume, that when the gift is by deed, the delivery of the deed is'equivalent to the delivery of the chattel. In our ópinion the Court was correct in its exposition of the law, and we need only to refer to the case of McCutchen v.

Mc-Cutchen, [9 Porter, 650,] in which this question arose, and was determined in accordance with the views now expressed. Upon a review of the whole case, we can perceive no error, and therefore the judgment is affirmed.