Sec. 319. Admissibility of deeds-Proof of execution -Ancient deeds and deeds without a stamp. In Alabama it is held that where one of the witnesses to a deed is proven to be dead and the signature of the other witness who resided out of the jurisdiction of the court is clearly proved, the execution of the deed is sufficiently shown to admit it in evidence. Smith v. Keyser, 115 Ala. 455 (22 So. Rep. 149). Construing How. Ann. Mich. Stat., § 5685, which makes a certified transcript of the record of a deed sufficient proof of the execution and delivery of it, it is held that if the original deed have endorsed upon it the certificate of the register that it was duly recorded, it is admissible in evidence without further proof of its execution. Webb v. Holt, 113 Mich. 338 (71 N. W. Rep. 637). When called for, the execution of a deed to a party as grantee must be proved, and in the absence of a statute to that effect the certificates of acknowledgment and registration appearing upon it are not proof of its execution. Me. Rev. Stat. ch. 82,

110, construed. Webber v. Stratton, 89 Me. 379 (36 Atl. Rep. 614). In Massachusetts it is held that a deed more than thirty years old, if produced from proper custody, requires no formal proof; and an officer's copy of an ancient recorded deed may be admitted in evidence as if it were the original deed. New York, N. H. & H. R. Co. v. Benedict, 169 Mass. 262 (47 N. E. Rep. 1027). Act Congress, July 13, 1866, § 163, providing that no deed, instrument, etc., required by law to be stamped, shall be admitted in evidence without being duly stamped, applies only to the courts of the United States and does not bind the state courts. Trowbridge v. Addoms, 23 Colo. 518 (48 Pac. Rep. 535). For fuller statement of this case see fourth section in chapter on Deeds.

Sec. 320. Parol evidence-Construction of contracts, deeds, etc. Where, in order to determine their meaning, it is necessary to construe two written contracts together, and when so construed there is no ambiguity, parol evidence is inadmissible to aid in their construction. Harrison v. Tate, 100 Ga. 383 (28 S. E. Rep. 227). Applying the rule that parol evidence is admissible to show the consideration of a deed, it is held that the agreement of the parties to a deed in reference to the payment of incumbrances existing on the land

conveyed, may be shown by parol. Ford v. Savage, 111 Mich. 144 (69 N. W. Rep. 240); Clark v. Lowe, 113 Mich. 352 (71 N. W. Rep. 638); Morgan v. South Milwaukee Lake View Co., 97 Wis. 275 (72 N. W. Rep. 872). Parol evidence is admissible to show that property not included in a conveyance by its terms is not appurtenant to the property conveyed. Carman v. Staudaher, 20 Mont. 364 (51 Pac. Rep. 738). Though a mortgage, on its face, is for the payment of a specific sum of money, parol evidence is admissible to show that it was really intended to secure future advances made from time to time. Johnson v. Bratton, 112 Mich. 319 (70 N. W. Rep. 1021). One asserting that a conveyance made by a parent to a child was intended as an advancement, may show by parol evidence that no consideration was paid for its execution. Finch v. Garrett, 102 Ia. 381 (71 N. W. Rep. 429). Parol evidence is admissible to show the surroundings and situation of the parties to a deed at the time of its execution. White v. Rice, 112 Mich. 403 (70 N. W. Rep. 1024). Applying Ia. Code 1873, § 2326, requiring wills to be in writing, it is held that parol evidence is not admissible to show that an absolute devise is to be held in trust for other persons. Moran v. Moran, 104 Ia. 216 (73 N. W. Rep. 617; 65 Am. St. Rep. 443; 39 L. R. A. 204). Where a mortgagor of land assigned as additional security a lease of the land to another which gave him an option to purchase, and the mortgagee endorsed on the lease that the payment of rents under it should be made to the mortgagor and used and applied as she may deem fit and proper, and that it is further understood that the mortgagee is to have no interest in the purchase money which the lessee might pay, it is held that parol evidence is admissible to show that the mortgagee did not waive the right to have the purchase money applied in payment of the mortgage. Pennsylvania Mortg. Inv. Co. v. Simms, 16 Wash. 243 (47 Pac. Rep. 441).

Sec. 321. Parol evidence-Contemporaneous agreements-Identifying parties and subject matter. A parol agreement made at the time of the execution of a note secured by a mortgage to the effect that the security should be exhausted before proceeding against the maker, may be shown. Clinch Val. Coal & Iron Co. v. Willing, 180 Pa. St. 165

(36 Atl. Rep. 737; 57 Am. St. Rep. 626). A verbal contract in direct conflict with a contemporaneous written contract between the parties in inadmissible in evidence to vary the terms of the latter. Younie v. Walrod, 104 Ia. 475 (73 N. W. Rep. 1021.) When the wording of the lease shows that there are two persons named as lessees, parol evidence is not admissible to show that one was merely acting as surety for the other. Hobbs v. Batory, 86 Md. 68 (37 Atl. Rep. 713.) Where a conveyance to an intended grantee, designates him by a wrong name, parol evidence is admissible to show that he is the same person who subsequently conveys the property in his right name. Salmer v. Lathrop, 10 S. Dak. 216 (72 N. W. Rep. 570). As to the admissibility of parol evidence to identify a corporation to whom a devise is made, see Tilley v. Ellis, 119 N. C. 233 (26 S. E. Rep. 29). Parol evidence is admissible to identify land described in a written contract. Iowa Code 1873, §§ 3663, 3664, applied. Wilson v. Riddick, 100 Ia. 697 (69 N. W. Rep. 1039).

Sec. 322. Parol evidence-Particular cases. In North Carolina it is held that the law does not allow the title to land to pass by parol contract, and parol evidence offered for such a purpose should be excluded by the court though the parties raise no proper objection. Presnell v. Garrison, 121 N. C. 366 (28 S. E. Rep. 409; 29 S. E. Rep. 839). In an action by a mortgagee on a grantee's covenant to assume and pay the mortgage debt, evidence to contradict the covenant of assumption is inadmissible, where there was no pleading alleging that it was inserted by fraud or mistake or that the grantee accepted the deed without knowledge of such covenant. Starbird v. Cranston, 24 Colo. 20 (48 Pac. Rep. 652). Particular case in which secondary evidence was held inadmissible to prove the existence of a lease. Weiler v. Monroe Co., 74 Miss. 682 (21 So. Rep. 969).

Sec. 323. Declarations affecting realty interests. Declarations by one in possession accompanying the act of possession, if made in good faith, are admissible to explain the character and extent of his possession. Ward v. Edge, 100 Ky. 757 (39 S. W. Rep. 440); High's Heirs v. Pancake,

42 W. Va. 602 (26 S. E. Rep. 536). A grantor's declarations made in disparagement of his title before a conveyance by him, are admissible against his grantee. Finch v. Garrett, 102 Ia. 381 (71 N. W. Rep. 429); Mc Curtain v. Grady, Ind. Ter. (38 S. W. Rep. 65). But a grantor's deed cannot be impeached by his inconsistent declarations made long prior to its execution. Kelley v. Perrault, Idaho (48 Pac. Rep. 45). Declarations of a grantor after delivery of a deed by him are inadmissible to invalidate it. Shea v. Murphy, 164 Ill. 614 (45 N. E. Rep. 1021; 56 Am. St. Rep. 215). Declarations of one's agent incidentally made, which at most amount to the mere expression of opinion, cannot affect his principal's title. Humes v. Proctor, 151 N. Y. 520 (45 N. E. Rep. 948). Persons claiming under a deed, for the purpose of showing that it was based upon a valuable consideration, may prove the declarations of the grantor that it did not pay one-half of his debt to the grantee. Oakman v. Walker, 69 Vt. 344 (38 Atl. Rep. 63). After the death of a surveyor who made a plat, a landowner who is not a surveyor is incompetent to explain lines placed on the plat by his direction, as they are declarations of an interested party. State v. Crocker, 49 S. C. 242 (27 S. E. Rep. 49). As to the admissibility of the declarations of a deceased owner in reference to his boundary, see High's Heirs v. Pancake, 42 W. Va. 602 (26 S. E. Rep. 536). Where the issue is as to the location of a way of necessity, made by the servient owner, his declarations to other prospective purchasers of lots who would have occasion to use the way, are admissible. Jenne v. Piper, 69 Vt. 497 (38 Atl. Rep. 147).

Sec. 324. Opinions -Judicial notice - Presumptions. Opinion evidence is admissible upon a question of value. Blair v. City of Charleston, 43 W. Va. 62 (26 S. E. Rep. 341; 64 Am. St. Rep. 837; 35 L. R. A. 852). In an action for damages to property on account of the construction of an elevated railway the opinion of a witness as to the damages occasioned to adjacent property cannot be contradicted by proof that the owner of it accepted a less sum in settlement. Lake Roland Ry. Co. v. Weir, 86 Md. 273 (37 Atl. Rep. 714). The courts of a state will take judicial notice of the officers authorized by it to take acknowledgments in another state.

Fisk v. Hopping, 169 Ill. 105 (48 N. E. Rep. 323). A presumption of undue influence arises where, when a lessor and lessee also sustaining the relation of mortgagor and mortgagee, the lessor accepts a return of the premises in a condition inferior to that required by the lease. Hines v. Outlaw, 121 N. C. 51 (27 S. E. Rep. 1006). The fact that one who has been absent long enough to create a presumption of his death was unmarried when he left the state and was not shown to have been married when last heard from, does not create a presumption that he died childless. Still v. Hutto, 48 S. C. 415 (26 S. E. Rep. 713).

A presumption of death does not arise from long absence of a person from the place where his relatives reside, but which is not his place of residence, and their failure to receive letters from him for more than seven years. Hitz v. Algreen, 170 Ill. 60 (48 N. E. Rep. 1068). The court say: "In order to enforce the presumption of death of a person after an absence of seven years, there must be evidence of diligent inquiry at the person's last place of residence, and among his relatives and any others who probably would have heard from him if living. Hancock v. Insurance Co., 62 Mo. 26; 2 Greenl. Ev. (15th Ed.), § 278f; Wentworth v. Wentworth, 71 Me. 72; Bailey v. Bailey, 36 Mich. 182; Whiting v. Nicoll, 46 Ill. 233 (92 Am. Dec. 248). Long absence alone, no matter how long continued, is not sufficient of itself to raise a presumption of death. There must be shown an absence of seven years or more from the established residence of the party before the presumption of death can be raised. Stinchfield v. Emerson, 52 Me. 465 (83 Am. Dec. 524)." Particular evidence held sufficient to create a presumption of death on account of absence from the established residence. Sherod v. Ewell, 104 Ia. 253 (73 N. W. Rep. 493).

Where the

Sec. 325. Competency of witnesses. good faith of a party is at issue, he may testify directly that he acted in good faith. Hale v. Robertson, 100 Ga. 168 (27 S. E. Rep. 937). Applying Ga. Acts 1885, p. 31, §§ 3837, 3838, it is held that the maker of a deed is a competent witness to prove its execution where the subscribing witness cannot be produced or is unable to remember the transaction.