Juzan, et al. v. Toulmin. execution of it by the complainants was induced by the fraud of the defendant. The registration of the deed, was nothing more than prima facie evidence that it was regularly proved and recorded; but this presumption, was repelled by the testimony of Russell and Lyon in their depositions for the complainants, and the genuineness of the deed should be established by other and independent evidence. [4 Johns. Rep. 161; 3 Johns. Cases, 234.] Where a deed has been lost or destroyed, it should be shown that a diligent search has been made for it in the place where it was likely to be found, or the loss or destruction should be shown by positive proof. [1 Stark. Ev. 386, n. 2 ed. 7.] If the party to whose possession it was traced is dead, application should be made to his representatives, and a search made amongst his papers, and some one who has charge of them, examined. [Id.; Greenl. Ev. 595; 3 Phil. Ev. 1227; 16 Johns. Rep. 193.] Not only should it be shown that the proper means have been used to recover a paper, but its contents should be proved by satisfactory evidence. [Id. 593.] If there is reason to believe that the instrument is designedly withheld, or its production would prejudice the party who claims a benefit from it, in the one case, secondary evidence should not be admitted, in the other, the most convincing proof of loss should be required. [3 Phil. Ev. C. & H.'s Notes, 1222-3-4.] None of these requisitions have been complied with in the present case. It may be fairly presumed, that the deed has been designedly withheld. There was no reason why it should have been placed in the hands of Elliott, to enable him to defend the suit of Johnston and Files' heirs against the defendant, and the complainants. The bill shows that it could not have afforded any aid in the defence. It is somewhat remarkable, that every paper that could be of service to the defendant, if the statements in his answer are true, and if untrue, would have been available for the complainants, are said to be lost. The deposition of Chastang shows, that the deed of 1831, was in defendant's possession after the commencement of this suit, and there can be no doubt but its loss is a mere pretence. The deed of 1831 is not proved. Lyon does not state Juzan, et al. v. Toulmin. that it was acknowledged before him, and Russell avers that he never attested it. Mrs. Gunnison does not speak from her own knowledge of its execution; for she says that the complainants were not present when she signed it. But if the genuineness of the deed was conceded, then it is insisted that it is not supported by a sufficient consideration. The testimony of Newbold and Russell shows that the land was worth from $5,000 to $20,000, in 1825, and the value of the twenty-five acres was $750-not more than one half their interest in the sum due them from Files' estate, if the sale made by their father had been obligatory upon them; and not above one-tenth their interest in the St. Louis tract. The answer of the defendant is irresponsive to the bill as it respects the complainants' interest, its value, and the offers he made to them. [Ala. Rep. 333.] The transaction is one of gross inadequacy of consideration, and must for that reason fail. [3 Wend. Rep. 626.] The defendant supposed that his title to the land was complete, by his purchase under the decree of the Orphans' Court of Monroe, and the payment of what was due on the mortgage of Files to Daniel Juzan. This is indicated by the fact, that he never applied for a conveyance, or quit-claim from the heirs of Daniel Juzan earlier than 1831, though he previously sold parts of the land to different persons; by the amended answer, which sets up no other contract than that in respect to the extinguishment of the mortgage; as well as by the additional fact, that it is not pretended that Gunnison made an agreement for the adjustment of his interest previous to 1831. See R. G. Gordon's deposition as to Elliott's opinion of Daniel Juzan's title. The de E. S. DARGAN and P. PHILLIPS, for defendant. murrer to the bill should have been sustained, because it sets up two titles one in favor of the complainants and their sis- . ters, and the other vesting an exclusive interest in Peirre Juzan under a deed made by his father in September, 1815. To enforce the latter, but one of the complainants could sue, and the misjoinder is fatal. [Story's Eq. Pl. 392; 8 Peters' Rep. 123.] Although the original bill supposes that the "St. Louis" Juzan, et al. v. Toulmin. tract was settled upon the complainants' mother by a marriage settlement, the amendment abandons this ground, assumes that the land was given to their mother by her father, and that the executor brought it into the appraisement to enable her to obtain her portion of the residue of the estate. Neither the original or amended bill are thus far sustained by the proof. The will of Laurendine shows that he, and not his daughter, Mrs. Juzan, was the proprietor of the land in question. The sale and adjudication of the estate of the testator, Laurendine, by the executor, was not a mere division under the will, but invested the purchaser with all the title of the testator. [Civil Code, Art. 2585-6, 2600-2-3.] Not only the beneficiaries under the testator's will purchased the property, but some of it was bought by strangers; this is quite sufficient to show that the auction was intended as a sale. There is no evidence to prove that Mrs. Juzan authorized her husband to invest her credit in the purchase of land and other property, or that she ever assented to it. If her money was used, upon the dissolution of the marriage, perhaps the property purchased would be liable to its reimbursement, yet this burthen being removed, the purchasers title could not be affected. [8 Mart. Rep. N. S. 179; 5 Louis' Rep. 89; 17 Ves. Rep. 56; 18 Id. 499.] But the frame of the bill does not authorize relief upon the ground that the husband has converted the paraphernal estate. Assuming, however, that the land was the separate estate of Mrs. Juzan, it may be asked, what then is the condition of the parties? Daniel Juzan, acting under the prevailing impression that a change of government at Mobile, from Spain to the United States, destroyed the pre-existing state of things, even as it respected the tenure under contract, sold the "St. Louis" tract to Files in 1816; the latter consulted counsel, who pronounced the title good, and under such circumstances, the sale conveyance and mortgage were made. See testimony of Judge Crawford and others. Judge Crawford states, that he filed a bill in 1816, as the counsel of Files, to set aside the conveyance made by D. Juzan, to his son, of a part of the land, and that the decree offered as evidence was rendered on that bill. Austill, in his Juzan, et al. v. Toulmin. testimony, states that after the death of Files and Juzan, the heirs of the latter employed D. Rust, a member of the bar to prosecute a suit to foreclose the mortgage which Files had executed for the unpaid purchase money; the personal estate of files was insufficient to pay its debts, and witness, as the administrator, upon representing and proving that fact according to law, to the court from which he obtained his appointment, obtained an order to sell the lauds in question. They were accordingly sold, in obedience to the decree, and the defendant became the purchaser, subject to the mortgage, paid the purchase money, and received a conveyance in June, 1828. Defendant paid for his purchase at the commissioner's sale, and to extinguish Armstrong's lease on the land, about $3000 ; there was due on the mortgage about $3100. The defendant proposed that the complainants and Gunnison, in right of his wife, should contribute equal portions of the sum he had paid to disencumber the land, and be jointly and equally interested in the same. Gunnison assented, but the complainants declined the offer, and accepted in full satisfaction of their interest, twenty-five acres of land, and $250. The consideration paid by the defendant was a just equivalent. In proof of which, and the foregoing facts, see testimony of Mrs. Gunnison, Newbold and Austill.. It is not pretended that there was any fraudulent concealment on the part of the defendant, previous to 1831. The complainant, Peirre Juzan attained his majority in 1821, and the sertlement consequent upon the defendant's purchase occurred in 1828. The employment of counsel to foreclose the mortgage, after the death of Files and the elder Juzan, and the subsequent settlement with the defendant, are implied admissions of the sale to Files, and estop the complainants from denying its va lidity. Besides, the acquiesence of Peirre, for so long a time in the decree which sets aside the deed from his father to him must now prevent him from controverting it; especially as he does not alledge ignorance of its existence. If one permit, encourage, or acquiesce in a sale, he shall be bound, if there be a valuable consideration, although he be an infant, or feme covert. And the same consequence Juzan, et al. v. Toulmin. follows where the representation has been made through mistake. [1 Vern. Rep. 137; 2 Id. 239; Sugden on Vend. 522; 1 Johns. Ch. Rep. 354; 2 Brown's Ch. Rep. 388.] Equity will not interfere against a bona fide purchaser for a valuable consideration, on the ground of accident. [1 Story's Eq. § 108.] Nor for a mistake of fact, where each party is equally innocent-whether the mistake was mutual or unilateral. [Sugden's Vend. 297-9; 2 Atk. Rep. 8; 2 Story's Eq. 168; 6 Johns. Ch. Rep. 166.] Nor where a party has acted in ignorance of his title upon a mistake of law. [1 Story's Eq. 139.] The defendant is entitled to occupy Files' position of a purchaser, against whom it is not pretended any suspicion of unfairness lies. [1 Johns. Ch. Rep. 213; 3 Id. 147; 4 Bibb's Rep. 482; 1 Gill & Johns. Rep. 273.] The deed which was executed by the complainants, and Gunnison and wife, on the 24th September, 1831, is shown by the answer of the defendant to have been lost, and the answer is agreed to be taken as his affidavit. The preliminary proof was ample to let in secondary evidence of its contents; the defendant was the custodian of the deed, as well as its proprietor. [8 Porter's Rep. 535; 9 Id. 39; 2 Ala. Rep. 61; 5 Id. 439; 6 Id. 589; 7 Id. 126.] Mrs. Gunnison and Lyon prove its execution. Russell's deposition shows that he is solicitous for the success of the complainants. Mrs. Gunnison says he is urging the prosecution of the suit, and Godbold says he informed him, in March, 1844, that he was interested to the amount of $5,000 in the complainants' recovery. Files was not charged with notice of the proceeding had under Laurendine's will, or of any thing that was shown by the Spanish archives. There was no statute requiring them to be recorded until 1833. [Clay's Dig. 503.] If the answer does not explicitly deny notice, it is enough to say that the rule insisted on by the plaintiff's counsel does not apply in this case, where the defendant insists upon a legal title. The decree in favor of Files against Peirre Juzan operated as a conveyance-was acquiesced in for more than twenty |