majority">Smith, J.

This is the naked question arising from the attempt of an heir to establish a title in an ancestor by producing a certified copy of a deed to the ancestor, which has been regularly recorded in the town clerk’s office, agreeably to the laws of this state, without any claim that the original has been lost by time or accident, or in any way out of the power of the plaintiff to produce.

*254It is a general and well known rule of law, that when the plaintiff claims title to lands by a deed, it is necessary for him to produce on trial the original instrument, and prove its execution in the manner required by law. If it becomes necessary for him to prove a title in another under whom he claims, the same rule of evidence applies ; and it may he laid down as a rule applicable to all cases, that wherever the plaintiff is bound to prove the execution of a deed in case the defendant denies it, he is of course bound to produce the original deed, or shew some reason for not producing it.

I am aware, that in this state, a long and universal practice has taken place of not passing the title deeds to the purchaser upon the sale of lands ; which probably arose at a very early period in consequence of the law requiring all deeds to be recorded. In consequence of this practice, it becomes extremely difficult, if not impossible, in tracing a title through sundry prior conveyances, to produce the original deeds. The court have accordingly, in these cases, admitted certified copies from the town clerk’s office; but they have also dispensed with proof of the execution of the original deeds, and considered these copies as prima facie evidence of title, so that if they are contested, the burden of proof devolves on the other party.

In this case, the plaintiff steps into the place of the ancestor, and is bound to establish a title in him by producing the original deed, and proving its execution. There is not even a presumption that the plaintiff is not possessed of the original deed. The heir has a right to the title deeds of the ancestor ; and the usual course is to receive them.

The case of Talcott, assignee of Sanford, v. Goodwin, 3 Day’s Ca. 264. I consider as in point, and decisive of the present question. In that case, this court decided, that an assignee under a commission of bankruptcy, to support an action of ejectment, was bound to produce the original deed to the bankrupt, and refused to admit a copy from the town clerk’s office ; and in my judgment, the reason is quite as strong why an heir should produce the original deed to his ancestor.

I am, therefore, of opinion, that the court were correct in rejecting a copy, and should not advise to a new trial.

In this opinion the other Judges severally concurred.

New trial not to be granted.

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