Defendant in Error, the American Eagle Fire Insurance Company of New York, filed a petition for rehearing of this case, the petition stating as grounds for seeking the rehearing: (1) That the Court overlooked the fact that the error, if any, in admitting in evidence the uncertified list of deeds and mortgages executed by or to the plaintiff, as well as to third persons not parties to the suit, sworn to by the Secretary of the Abstract Company, was harmless error; (2) that the Court overlooked a long line of Florida decisions beginning with Nickels v. Mooring,16 Fla. 76, holding that a judgment will not be reversed simply because immaterial evidence was introduced at the trial; (3) that the Court overlooked the harmless error statute, Section 4499 C.G.L. and (4) that substantial justice has been done and the judgment should not be reversed because of an admission of evidence.

The petition for rehearing was granted.

In this case, the sheets of paper containing a list of what purported to be all of the deeds and mortgages both to and from plaintiff for a certain period of time were introduced in evidence over the objection of counsel for plaintiff. Objection was made to the admission in evidence of all of these papers, except those relating to the property involved in this suit, on the grounds that they were not the best evidence and because they were immaterial and irrelevant. The trial court admitted them in evidence after the Secretary of the Abstract Company testified that he had a list of the deeds and mortgages, both to and from the plaintiff, covering the period of time from 1930 to the date of the trial, compiled at the request of defendant's counsel. *Page 622 There were 21 separate instruments in the purported abstract. Their introduction in evidence was an attempt to prove something which the face of the instruments themselves would show, and was a clear violation of the best evidence principle.

In the brief of Defendant in Error, it is said, in substance, that since counsel for plaintiff made no objection to the admission in evidence as to that part of the purported abstract relating to the property involved in this litigation, introduction of the remaining portions of the purported abstract was harmless, because plaintiff did not show where it prejudiced her rights.

The harmful effect of admitting the purported abstract in evidence may be seen by understanding that this was an action on a fire insurance policy. One defense was that the property was burned for the insurance, and in order to prove this defense, the defendant attempted to show that plaintiff's father, John Sumner, was the beneficial owner of the property, and that he carried all of his property in the names of either his daughter or his wife, and also traded property in their names. Another defense was that procuring insurance in this manner was a fraud upon the Company because John Sumner was the real beneficial owner. In order to show that title to the property said to have been owned beneficially by John Sumner was in fact held by his daughter and wife, it became necessary to show certain transfers of property. There is no better evidence of the transfers than the instruments themselves. If these cannot be produced, upon proper showing, certified copies of the deeds or mortgages may be introduced asprima facie evidence of the instruments or their due execution. Article XVI, Section 21, Florida Constitution. The original deeds or mortgages must be accounted for before certified copies *Page 623 may be entered in evidence. See Johnson v. Drew, 34 Fla. 130,15 So. 780, 43 A.S.R. 172; Florida Finance Co. v. Sheffield, 56 Fla. 285,48 So. 42, 23 L.R.A.(N.S.) 1102,16 Ann Cas. 1142. The purpose for which these leaves of paper, purporting to be an abstract, were introduced in evidence was not made plain by counsel for defendant at the time of their introduction, so it may now be assumed that they were introduced for any possible effect they might have on the jury. The original deeds and mortgages should have been produced, but if they could not, certainly certified copies of them could have been obtained from the clerk of the circuit court.

It is contended now, for the first time, that plaintiff, upon being recalled to the witness stand, testified as to each piece of property contained in the purported abstract, thus rendering the error, if any, due to admission of the purported abstract, harmless. The record has been re-examined with a view to learning whether the error was rendered harmless by plaintiff's later testimony. It is true that plaintiff testified in some respect as to numerous pieces of property, and her admission as to facts against her interest would be binding upon her; but in that later testimony, the descriptions of the lots and the testimony as to the circumstances of each transaction was too vague and indefinite to be equivalent to the descriptions and the information contained in the purported abstract. For example, the property in Westmoreland Pines Subdivision was identified as follows:

"Q. Do you own any property in Westmoreland Pines Subdivision?

"A. I did own some property there but I traded them off to various people. *Page 624

"Q. To whom did you trade it?

"A. I do not remember right at the present time.

"Q. Is it not a fact that on February 1st, 1933, that you gave to your mother all of the lots that you had in Westmoreland Pines?

"A. Not all of them.

"Q. You gave her a deed to some of them?

"A. Yes, sir, I gave them to her for a piece of property that she had that I thought was worth as much.

"Q. What piece of property was that?

"A. I could not remember at the present time. She had something I wanted and I had something she wanted and it was worth about the same and we traded.

"Q. In February, 1933, you cannot remember that far back to know what you traded for?

"A. I could not keep all that in my mind. I would have to have a mighty good one if I did."

All through plaintiff's testimony, upon being recalled, there is this quality of indefiniteness and uncertainty typical in the above quoted testimony. There was not that certainty in her testimony that was found in the purported abstract. Neither did plaintiff's testimony give all the facts that were set out in the purported abstract as to description of the property, date of the deed or mortgage, date of recording the instrument, and all the parties involved in the transfer or incumbrance of the property.

It is certain that error was committed in admitting the purported abstract in evidence. We cannot say, as is contended by defendant in error, that the testimony of plaintiff, upon being re-examined, completely nullified the error committed by the admission, as there was considerable ground covered by the purported abstract that was not *Page 625 covered by her testimony, and the jury might have been unduly influenced by this improperly admitted evidence in rendering its verdict. Therefore the former judgment of reversal in this case is adhered to on rehearing.

Reversed.

WHITFIELD, C.J., and BROWN and DAVIS, J.J., concur.

ELLIS, P.J., and TERRELL, and BUFORD, J.J., concur in the opinion and judgment.