#### STRAIN v. FITZGERALD.

(Filed June 10, 1902.)

EVIDENCE — Parol Evidence- — -Deeds—Seal.

Where a deed is lost and there is no seal on,the record, it may he shown hy parol evidence that there was a seal on the original deed.

Douglas, J., dissenting.

PetitioN to rehear this case as reported in 128 N. C., 396, is allowed.

Winston & Fuller, for petitioners.

Manning & Foushee and Graham & Graham, in opposition.

Clark, J.

This is a petition to rehear this case, reported in 128 N. C., 396, for that the Court inadvertently failed to pass upon the exception that'the Court below excluded competent parol evidence which was offered to prove that there was’in fact a seal to the Sheriff’s deed. If that had been shown, the *601most critical examination could not have distinguished this case from Heath v. Cotton Mills, 115 N. C., 202. In that case it was held that where the record represents on its face, as by recitals or otherwise, that the instrument was sealed, and, in fact, it was duly sealed, the record is valid and sufficient as notice, though it does not show a copy of the seal or any device representing it. Todd v. Union, 118 N. Y., 347, is also “on all-fours” with this case. There the original tax deed had been lost and the record showed no seal. But the Court held that, as one witness swore that there was a seal on the origina] and the record of the deed recited “Witness my hand and seal,” there was evidence to go to the jury upon the question. Somewhat to same purport are Carpenter v. Dexter, 75 U. S., 513; Starkweather v. Martin, 28 Mich., 471; Geary v. Kansas City, 61 Mo., 379; Norfleet v. Russell, 84 Mo., 177; Long v. Joplin, 68 Mo., 422; Hammond v. Gordon, 93 Mo., 224; Flowery v. Bonanza, 16 Nev., 302; Jones v. Martin, 16 Cal., 165; Abb. Tr. Ev., 483.

In Patterson v. Galliher, 122 N. C., 511, it appeared that there was in fact no seal. In excluding the evidence here offered to show that in fact there was a seal, there Avas error.

Petition allowed and

New Trial.

Douglas, J., dissents.