fied exemplifications would be. Such copies, when the court shall be satisfied of their genuineness, may be ordered to be recorded or registered.

Code, s. 55. This section does not have effect to exclude parol testimony to prove contents: Varner v. Johnston, 112-570; Hopper v. Justice, 111-418; Mobley v. Watts, 98-284. Certified copy of deed can not be changed by parol testimony as to what original contained: Hopper v. Justice, 111-418. A copy should always be produced, but if no copy, then proof may be by parol: Cowles v. Hardin, 91-233; Dumas v. Powell, 14-103; Baker v. Webb, 2-43.

328. Original papers may be again recorded; survey may be made by petition before clerk. All original papers, once admitted to record or registry, whereof the record or registry is destroyed, may, on motion, be again recorded or registered, on such proof as the court shall require. Whenever any conveyance of real estate, or any right or interest therein, shall have been lost, the registry thereof being also destroyed, any person claiming under the same may cause the boundaries thereof to be established in the manner provided for in chapter ten, or he may proceed in the following manner to establish both the boundaries and nature of his estate: He shall file his petition before the clerk of the superior court, setting forth the location and boundaries of his land, whose land it adjoins, and the estate claimed therein, and praying to have his own boundaries established, and the nature of his estate declared. All persons claiming any estate in the premises, and those whose lands adjoin, shall be notified of the proceedings, and thereupon, unless they or some of them shall, by answer on oath, deny the truth of the matters alleged, or some of them, the clerk of the superior court shall order a surveyor to run and designate the boundaries of the petitioner's land, return his survey, with the plot thereof, to court, which, when confirmed, shall, with the declaration of the court as to the nature of the estate of the petitioner, be registered and have, as to the persons notified, the effect of a deed for the same, executed by the person possessed of the same, next before the petitioner: Provided, that in all cases wherein the process of surveying shall be disputed, and the surveyor shall be forbidden to proceed by any person interested, the same proceedings shall be had as under chapter ten. The petitioner shall set forth the whole substance of the conveyance as truly and specifically as he can, and if any of the persons notified shall, by answer, deny the truth thereof, the clerk of the superior court shall transfer the issues of fact to the superior court at term, to be tried as other issues of fact are required by law to be tried, and on their verdict and the pleadings, the judge shall adjudge the

rights of the parties, and declare the contents of the deed, if any deed be found by the jury, and allow the registration of such judgment and declaration, which shall have the force and effect of a deed.

Code, s. 56. This is an enabling statute, giving an additional, but not exclusive, remedy: Jones v. Ballou, 139-526; Cowles v. Hardin, 91-231. Plaintiff can depend upon rules of common law to set it up: Hopper v. Justice, 111-420; Mobley v. Watts, 98-284; Cowles v. Hardin, 91-231. When proceeding brought hereunder, requirements must be complied with: Cowles v. Hardin, 79-577. Before a deed can be made plaintiff must clearly prove that such a deed once existed, its legal operation and its loss: Plummer v. Baskerville, 36-252; Loftin v. Loftin, 96-94.

329. Copies of lost wills may be admitted to probate. In all counties where the original wills on file in the office of the clerk of superior court, and will-books containing copies, have been or may be lost or destroyed, if the executor or any other person has preserved a copy of a will (the original being so lost or destroyed) with a certificate appended, signed by a clerk of the court in whose office the will was, or is required to be filed, and stating that said copy is a correct one, such copy may be admitted to probate, under the same rules and in the same manner as now prescribed by law for proving wills; and the proceedings in such cases shall be the same as though such copy was the original offered for the first time for probate, except that the clerk who signed such certificate shall, on oath, acknowledge his signature, or in case it shall appear that said clerk has died or left the state, then his signature shall be proven by a competent witness; and the witness or witnesses to the original, who may be examined, shall be required to swear that he or they signed in the presence of the testator and by his direction a paper writing purporting to be his last will and testament.

Code, s. 57. Probate of lost will must be made before clerk: McCormick v. Jernigan, 110-406. No statute of limitation applies to this proceeding: Ibid.

330. Certified copy of will evidence; letters testamentary granted. In any action or proceeding at law, wherein it may become necessary to introduce such will to establish title, or for any other purpose, a copy of the will and of the record of the probate, with a certificate signed by the clerk of the superior court for the county where the will may be recorded, stating that said record. and copy are full and correct, shall be admitted as competent evidence; and when a copy of a will shall have been admitted to probate, the clerk of the superior court shall thereupon issue letters testamentary.

Code, s. 58.

9

331. Contents of destroyed will proved on petition before clerk. Any person desirous of establishing the contents of a will destroyed as aforesaid, there being no copy thereof, may file his petition. in the office of the clerk of the superior court, setting forth the entire contents thereof, according to the best of his knowledge, information and belief, and all persons having an interest under the same shall be made parties, and if the truth of such petition be denied, the issues of fact shall be transferred to the superior court at term for trial by a jury, whether the will was recorded, and if so recorded, the contents thereof, and the declarations of the judge, shall be recorded as the will of the testator. Any devisee or legatee shall be a competent witness as to the contents of every part of said will, except such as may concern his own interest in the same. Code, s. 59. Evidence to prove contents: Cox v. Lumber Co., 124-78; Varner v. Johnston, 112-570; Mobley v. Watts, 98-284-to prove existence of will, Cox v. Lumber Co., 124-78. Statute of limitations: Varner v. Johnston, 112-570.

332. Destroyed judgments and proceedings perpetuated by petition in court having original jurisdiction. Every person desirous o perpetuating the contents of any destroyed judgments, orders or proceedings of court, or any paper admitted to record or registration, or directed to be filed for safe keeping, other than wills or conveyances of real estate, or some right or interest therein, or any deed or other instrument of writing, required to be recorded or registered but not having been recorded or registered, it being competent to register or record said deed or other instrument at the time of its loss or destruction, may file his petition in the court having jurisdiction of like matters with the original proceeding, setting forth the substance of the whole record, deed, proceeding, or paper, which he desires to perpetuate, and if, on the hearing, the court shall declare the existence of such record, deed, or proceeding, or paper at the time of the burning of the office wherein the same was lodged or kept, or other destruction thereof, and that the same was there destroyed, and shall declare the contents thereof, such declaration shall be recorded or registered, or filed, according to the nature of the paper destroyed.

Code, s. 60. Restored record can not be collaterally attacked: Branch v. Griffin, 99-173.

333. Color of title, how determined. Every person who shall have been in the continual, peaceable and quiet possession of land, tenements, or hereditaments, situated in the county, claiming, using and occupying them as his own, for the space of seven years, under known boundaries, the title thereto being out of the state,

shall be deemed to have been lawfully possessed, under color of title, of such estate therein as has been claimed by him during his possession, although he may exhibit no conveyance therefor: Provided, that such possession shall have commenced before the destruction of the registry office, or other destruction as aforesaid, and also that any such person, or any person claiming by, through or under him, will make affidavit and produce such proof as shall be satisfactory to the court that the possession was rightfully taken; and if taken under a written conveyance, that the registry thereof was destroyed by fire or other means, or was destroyed before registry as aforesaid, and that neither the original, nor any copy thereof, is in existence: Provided further, that such presumption shall not arise against infants, persons of nonsane memory, and persons residing out of the state, who were such at the time . of possession taken, and were not therefore barred, nor were so barred at the time of the burning of the office or other destruction. Code, s. 61. Case in which this section relied upon: Hill v. Overton, 81393.

334. Action on destroyed official bonds. Actions on official or other bonds lodged in any office which are destroyed with the registry thereof, may be prosecuted by petition against the principal and sureties thereto, and the proceedings shall be as in the former courts of equity.

Code, s. 62. Lost bonds must be set up in a court of equity: McCormick v. Jernigan, 110-406.

335. Witness tickets destroyed, others filed. The court having jurisdiction of the action may allow other witness tickets to be filed in place of such as may be destroyed, upon the oath of the witness or other satisfactory proof.

Code, s. 63.

336. Lost conveyances, how replaced. Where any conveyance executed by any person, sheriff, clerk and master, or commissioner of court has been lost, and registry thereof destroyed as aforesaid, and there is no copy thereof, such persons, whether in or out of office, may execute another of like tenor and date, reciting therein that the same is a duplicate, and such deed shall be evidence of the facts therein recited, in all cases wherein the parties thereto are dead, or are incompetent witnesses to prove the same, to the extent as if it was the original conveyance.

Code, s. 64.

337. Records of courts admissible to prove contents of deeds, wills, etc. The records of any court in or out of the state, and all transcripts of such records, and the exhibits filed therewith in any

case, shall be admissible to prove the existence and contents of all deeds, wills, conveyances, depositions and other papers, copies whereof are therein set forth or exhibited in all cases where the records and registry of such as were or ought to have been recorded and registered, or the originals of such as were not proper to be recorded or registered, have been destroyed as aforesaid, although such transcripts or exhibits may have been informally certified; and when offered in evidence shall have the like effect as though the transcript or record was the record of the court whose records are destroyed, and the deeds, wills and conveyances, depositions and other papers therein copied or therewith exhibited, were original.

Code, s. 65. Fain v. Gaddis, 144-765.

338. Copies of deeds, etc., mentioned in preceding section may be registered. The copies aforesaid of all such deeds, wills, conveyances and other instruments proper to be recorded or registered, as are mentioned in the preceding section, may be recorded. or registered on application to the clerk of the superior court, and due proof that the original thereof was genuine.

Code, s. 66.

339. Rules for petitions under this chapter. The following rules shall be observed in petitions and motions under this chapter: The facts stated in every petition or motion shall be verified by affidavit of the petitioner that they are true according to the best of his knowledge, information and belief; the instrument or paper sought to be established by any petition shall be fully set forth in its substance, and its precise language shall be stated when the same is remembered. All persons interested in the prayers of the petition or decree, shall be made parties. Petitions to establish a record of any court shall be filed at term in the superior court of the county where the record is sought to be established. Other petitions may be filed in the office of the clerk of the superior court. The costs of every action under this chapter shall be paid as the court may decree. Appeals shall be allowed as in all other cases, and where the error alleged shall be an erroneous finding by the superior court at term, of a matter of fact, the same may be removed on appeal to the supreme court, and the proper judg ments directed to be entered below. And it shall be presumed that any order or record of the court of pleas and quarter sessions, which was made and has been lost or destroyed, was made by a legally constituted court, and the requisite number of justices, without naming said justices.

Code, s. 67; 1893, c. 295. Parties to proceeding: Cowles v. Hardin, 79577. Verification of petition: Cowles v. Hardin, 79-577. Cases having some bearing: Flemming v. Roberts, 77-415; Dail v. Sugg, 85-104.