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At the present term, the following opinion was delivered :—

Ewing, C. J.

The evidence in this cause is quite sufficient to establish the allegations of the bill, and to entitle the complainant to relief against the heirs of William Caskey; for he ■made the mortgage in question of the whole premises to Joseph and David Chandler, by whom it was assigned to the complainant.

The evidence, in connexion with the answer of Mary Caskey, the widow of John Caskey, is stronger against her than against the remaining defendants, as she acknowledges that she destroyed the deed, alleged by the complainant, and which she admits was signed by her husband. The odium spoliator is has an *431operation against her, .which does not reach or affect them. Whatever might have-been her opinion of the validity of the deed, or her estimate of its value, other persons were interested in it at the time she destroyed it; and she ought in justice to them to have preserved it, which, if invalid, would have given it no strength ; or at least, before she destroyed it she should have warned them of her intention, and enabled them, by subjecting it to the inspection of disinterested persons, to obtain and secure thereby such evidence as their rights might have required or their interests demanded.

There is some evidence in support of the bill of complaint as to the other defendants, and yet there is not, in my opinion, sufficient evidence to justify a decree against them, and to afford the complainant the relief he seeks. On the relative weight of the evidence, I think it proper at present to express no opinion, from the course I have concluded I ought to recommend to the chancellor.

In the first place, I think there is some evidence of the material allegations of the bill, independent of the admissions in the answers, which ought to operate against those persons only by whom they were made. David D. Chandler testifies, that he had seen a deed from John Caskey to his son William, for the tract of land contained in the mortgage; that he had seen it in the possession of William, and that he drew the mortgage from that deed; that the deed was signed, as he recollected, by John Caskey and his wife, and acknowledged before Robert Carr, esquire, a commissioner for taking the acknowledgment and proof of deeds ; that he examined the acknowledgment on the deed at the time he drew the mortgage, for the purpose of seeing whether it was properly done, and he thinks it was in the usual form, and supposed it was correctly done. The deed, he said, was a warranty deed, in the ordinary form of a deed of bargain and sale, with a money consideration. He farther testified, that William had been in possession of the premises from the year 1817, claiming them as his own. It appears, also, that William erected a dwelling-house on the farm, there being already one there in which his father and family lived, and also that he bought a barn and moved it on to the farm from an adjoining lot.

*432' In the second place, there is not, as I have said, evidence sufficient, in my opinion, to justify the decree .the complainant seeks. William lived ou the farm, it is true, but so did his father and family up to the time of his decease. The management of the farm by William, may have resulted from the feeble and infirm state of health of his father. William told James Evans, one of the witnesses, there was a deed made out for him, but that the old people had possession of it, and that if he lived with them, and took good care of them while they lived, when they were done with it he was to have it. This information was given to Evans before the mortgage was made. The mother is living, and of course she is not yet done with it, yet the complainant seeks by his mortgage to foreclose and sell her interest, as well as the residue of the premises. William Caskey farther told Evans, on his death-bed, that when he got the deed to make out the mortgage, he took it from his mother’s drawrer, and when he had done with it he returned it again. David D. Chandler, who drew the mortgage, does not contradict this statement, although be does not directly declare or corroborate it. He got the deed of William, took it to his own house and there drew the mortgage; but he went to the old man’s house to get it, and got it there, and whether William had then moved to the other house, or yet lived wTith his father, he did not remember. David D. Chandler says the deed purported to be signed by John Caskey and his wife, but he was unacquainted with their signatures, having never seen either of them write. He says it was in the ordinary form of a deed of bargain and sale; but what estate was conveyed by it, whether in fee simple, or for life, or for years, he does not say. If either of the two latter, it might yet have been in the ordinary form. If it be said, it may be presumed Mr. Chandler meant a bargain and sale in fee simple, I answer he has not said so, as he might readily have done if he intended it, and I do not feel authorized, therefore, to raise such a presumption and act on it. Mr. Chandler speaks nothing of the delivery of the deed. He says he examined the acknowledgment, and thinks it w'as in the usual form, and supposed it was correctly done; but he says he did not become a commissioner until the year after, and he was not clerk of the county until a subsequent time, and how far he *433might then have been competent to judge of the correctness of an acknowledgment we have not the means to ascertain. Moreover, what was the usual form ? How often do we see acknowledgments wholly defective ? Why did he not state what the form was, and thus enable this court to judge whether it was apt and sufficient? If the reason is, because he could not remember the form, ought then what he says to suffice as evidence to establish so important a point ? I am not willing to affect the rights and interests of these parties upon such vague testimony.

Under these views and impressions of the cause, the question recurs, what ought to be done ? I am unwilling to recommend to the chancellor, at present, to make a decree for the relief of the complainant as against the heirs of William Caskey only; because it is the desire as well as the duty of this court, never to do justice by the halves—never merely to beget business for another court—and never, when a case is fairly within its jurisdiction, to leave open the door for litigation farther or in any other place, if it can possibly be here closed. Tt sometimes calls for the aid of a jury before by its decree it closes the door of litigation, and such I believe is now the proper procedure. If a decree against the heirs of William, as to the whole premises, or as to William’s share as an heir of his father only, were now to be made, and the bill be dismissed without prejudice as to the rest of the defendants, the complainant would be left to seek his claims as to the rest of the premises, or as to the other parties, in another suit or in another court, and they would be exposed to further litigation. The questions of law and fact as to the existence and validity of the deed, so far as respects the widow and the other heirs of John Caskey, may be investigated and tried under the direction of this court, either by a feigned issue or by an action at law brought and prosecuted under the order of this court, to which resort is frequently had on proper occasions : Newland on Ch. Prac. 350. The proceeding by action is in the present case, in my opinion, more convenient and eligible than a feigned issue.

I do, therefore, respectfully recommend to his excellency the chancellor, to direct by interlocutory order, that an action at law in ejectment, be brought and prosecuted in the supreme court by *434the complainant, in the name of John Den, as his lessee; that in this action the plaintiff declare for nine undivided tenth parts of the premises in question; that the defendants in this cause, excepting the administrators and heirs of William Caskey, do appear thereto, and be made defendants therein, upon the exchange of the consent rules ; that the issue to be joined be tried in the circuit court in and for the county of Sussex ; and upon the trial, besides the ordinary confession of lease, entry and ouster, the defendants do admit themselves to have been in possession of the premises demanded at the commencement of the action of ejectment ; and also, that on and before the first day of November, in the year of our Lord one thousand eight hundred and sixteen, the said John Caskey was seized in his demesne as of fee, and possessed of the premises in question : that upon the return of the postea in the said action into the supreme court, the same be duly certified into this court; that either party be at liberty, pending the said action, to apply to this court for directions therein, if need be; and that all further equity, arrd the matter of costs, be reserved for a farther hearing, and for the final decree of the court of chancery in this cause.

The subscriber, called by his excellenc}^ the chancellor to sit with him in the aforesaid cause, in which he had been concerned as counsel of one of the parlies, respectfully submits to him the foregoing opinion. Dated 20th September, 1831.

Charles Ewing, Ch. Just. Supreme Court.

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