MARK NORRIS, PLAINTIFF IN ERROR,

v.

FELLOWS H. BILLINGSLEY AND JOHN P. BILLINGSLEY, DEFENDANTS IN ERROR

Hocker, J.

Fellows H. Billingsley and John P. Billingsley brought an action of ejectment in the Circuit Court of Leon county, Florida, against Mark Norris for the recovery of the possession of a tract of land. There was a verdict and judgment for the defendants in error here, a reversal of which judgment is sought by writ of error from this court.

On the trial the plaintiffs introduced as a witness Fellows H. Billingsley, who testified that in the year 1899, L.

A. Crooker, named as grantor in a certain deed of the land to the plaintiffs which had been introduced in evidence, rented said land to the defendant (Norris), and in August of 1900, did agree to sell said land to the defendant, which agreement was reduced to writing, in duplicate and signed by them, and by H.

C. Billingsley and S.

A. Jones as witnesses, one being kept by Crooker and one given to defendant, Norris, and that defendant was then given possession of said land and has held it ever since, and that Crooker appointed H.

C. Billingsley his agent to collect for him under said contract, and the plaintiffs further to maintain the issues on their behalf by the said witness offered to prove that the defendant had not complied with the terms of his contract, “but the court instructed the plaintiff that it was unnecessary to prove a failure to comply with said agreement to purchase, and that defendants’ possession was a possession under the owner of the land,” to which ruling the defendant then and there objected and excepted. This is one of the errors assigned here. We think the assignment well taken. Inasmuch as the plaintiffs had proven a contract of sale to Norris from Crooker, their own grantor, made before the execution of the deed by Crooker to the plaintiffs, under which contract the defendant Norris was in possession of the land, it was essential to the plaintiffs’ right of recovery that the contract with Norris had been broken by him, and such circumstances of negligence must have existed as showed an abandonment of the contract after notice, fixing a reasonable time for its performance. Chabot v. Winter Park Company, 34 Fla. 258, 15 South. Rep. 756.

If Norris had not lost his rights under the contract, as is indicated, they might have been lost in the foregoing decision, then under his plea of not guilty, the contract operated as an estoppel and a defense to the action. Hagan v. Ellis, 39 Fla., 463, 22 South. Rep. 727.

Plaintiffs below introduced and read in evidence a deed of the land in question executed by L.

A. Crooker, in California, and acknowledged before a justice of the peace who certifies the acknowledgment under his private seal, and also certifies that he had no official seal. On this acknowledgment the deed was recorded by the clerk of Leon county, Florida, and its execution was not otherwise proven in this case. The defendant objected to this deed as evidence as not being properly acknowledged or proven, the objection was overruled, exception noted, and the ruling assigned here as error. The assignment is well taken.

Under section 1973 of the Revised Statutes of 1892, to entitle a deed to real property to record when the deed is executed out of the State, but within the United States, the acknowledgment or proof of its execution may be made before a notary public or justice of the peace having an official seal. The deed, therefore, was not properly recorded, and corn sequently its recordation did not make it prima facie evidence under section 21, Article XVI of the constitution of 1885. Parker v. Cleveland, 37 Fla. 39, 19 South. Rep. 344.

It was proven that the contract between Crooker and the defendant was executed in duplicate. The defendant offered evidence to show that his copy was lost and then offered to prove its contents by parol. This was properly objected to by the plaintiffs. The contract was in dupli cate. There w.as proof of loss of only one of them. They were each primary evidence of the contract (1 Burr Jones on Ev. sec. 208), and it does not appear that the defendant had taken the steps pointed out in section 1115 of the Revised Statutes, or otherwise, to cause the plaintiffs to produce the duplicate copy, which it appears from the evidence was in their possession. The court, therefore, did not err in ruling out the secondary evidence of the contents of the written contract.

Other errors are assigned but we do not deem it necessary to consider them.

The judgment is reversed at cost of defendants in error, and a new trial ordered.

Taylor, C. J., Shackleford, Cockrell and Whitfield, JJ., concur. Carter, J., absent.