Pierce v. Wallace
Before: Baldwin
Synopsis
Ejectment on an Alcalde grant of a town lot in San Jose, made January, 1847. Plaintiff proved by one Weeks that he was Alcalde for San Jose during October, 1847, and as such, recorded the original petition and grant in Book 3 of Deeds, in the Recorder’s office of Santa Clara county; that the grant was signed by the genuine signature of Bin-ton, Alcalde at its date; and that the record shown is a true copy of the petition and grant. Plaintiff then proved that neither the petition nor grant is now in the Recorder’s office. He then offered his own affidavit to account for the nonproduction of the original petition and grant, in effect, that lie had never seen said petition or grant; that he had made “ a full, thorough, diligent and careful search for the same among his papers and effects, and in every locality and place where the same might reasonably be expected to be found, and that he has inquired of every person who might reasonably be expected to have said original petition and grant, or either of them, and of every person who might reasonably be expected to know where the same might be found,” without success; and that he believes they are lost or destroyed. The affidavit of the widow of the grantee—upon whose estate there was no administration—was also read, stating that she has searched among- her papers without effect: Held, that this proof sufficiently accounted for the nonproduction of the original grant to admit in evidence the record thereof as found in Book 3 aforesaid; that it was not necessary to the validity of, the grant, that proof should be made of the petition—the grant, if properly issued, being- the effective paper.
It is sufficient in such case, prima facie, to show that the grantee, or his representative or assignee did not have the grant, and that it was not in the place where it was last seen.
Baldwin, J. delivered the opinion of the Court Field, C. J. and Cope, J. concurring.
We think the Court erred in rejecting proof of the grant. It was not necessary to its validity that proof should be made of the petition. The grant, if properly issued, is the effective paper. It » seems that the grant was in the hands of Weeks, Alcalde, and successor of Burton, the former officer acting as Alcalde, in October, 1847, and that Weeks copied it in the proper book of records used for recording such instruments ; that he knows Burton’s hand writing—that the signature to this grant is his, and that Burton was, at the date of it, Alcalde of San Jose; and that the record is a " true copy of this grant. It is shown not to be among the records of Santa Clara. The plaintiff’s aEdavit shows that he has searched among his private papers, and everywhere else, for this paper, where he thought it possible to find it, but without success. The aEdavit of the widow of the grantee—upon whose estate there seems to be no administration—says she has searched for it without effect. We think that the record should have been admitted upon this state of facts. The mere suggestion that this paper might have been taken to San Francisco by Minor is not enough to show that the plaintiff must aErmatively prove that he searched there. Prima facie it was enpugh to show that the grantee, or his representative or assignee did not have it, and that it was not in the place where it was last seen; but this aEdavit states that the plaintiff has not the paper, and that he has searched everywhere for it, where it could be expected to be found, and failed. It would he holding the rule to a degree of strictness which would' be oppressive, and, in many cases a denial of justice, to hold that more proof •than this of the inability to get the original paper should be required.
It is not necessary to inquire whether the oEcer had a right to grant as Justice, etc., or whether, if he had a right to grant as Alcalde, the fact that he signed his name Juez, etc., or J. P., instead of Alcalde, vitiates the grant. The question can be made after the proofs are in the cause; the objection to them was not on this ground, and the plaintiff may have cured this objection by other proof, if it had been taken, and there was anything in it.
Judgment reversed, and causeyemanded.
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