Soto v. Kroder
Before: Field, Granted, Reargued
Synopsis
A copy of a Mexican grant, taken from the United States Surveyor General's office, is not admissible in evidence without accounting for the nonproduction of the original grant, where the party offering the copy does not rely upon a certified copy of the grant, under the Act of 1857, but upon proof aliunde that the copy was correct.
Where reliance is placed, not on the production of a certified copy of the grant under the statute of 1857, but on proof aliunde of the copy; and where the original, as a document in the custody of a public officer, cannot he taken from his office, proof of that fact must be made as preliminary to the introduction of the copy.
Under the Act of 1857, a copy of a Mexican grant, certified by the United States Surveyor General to be a true and accurate copy of the grant on file in his office, is admissible in evidence “ with the like effect as the original,” without proof that the original could not be produced.
Such certified copies are admissible in evidence whenever the originals, if produced, would be admissible—the object of the statute being to remove objections to the copies, on the ground that they are secondary evidence.
Where it is proven that the signatures of the Governor and Secretary of the Department of California to a grant, at the time of its date, are genuine, then a copy duly certified under the Act of 1857 is admissible in evidence.
The decree of the United States District Court recognizing a grant and affirming its validity, having become final by the refusal of the United States, through their counsel, to prosecute any appeal therefrom, is conclusive as to the validity of the grant upon the United States, and all parties claiming under them by title subsequent.
It is no objection to the admission of a Mexican grant in evidence after its final confirmation, that there is no evidence that the grantee, previous to the issuance of the grant, ever presented a petition to the Governor expressing his name, country and religion, and the number of his family, or that the grant ever received the approval of the Departmental Assembly, or that the grant, or any proceedings in reference to it, were ever reported to the Supreme Government of Mexico.
The United States v. Cambuston (20 How. 59) does not so hold; and if it does, still the objection that the grantee never presented the petition would be available only against the confirmation of the grant. After such confirmation has become final, it is too late to press the objection.
The want of confirmation of a grant by the Departmental Assembly, or of any report of the grant, or of the proceedings with reference to it, to the Supreme Government of Mexico, did not prevent the title from passing to the grantee, and it is not material whether that title be regarded as a legal or an equitable one; in either case it carried with it a right to the possession of the premises against intruders.
Opinion — Field
Field, C. J. delivered the following opinion at the July term Cope, J. concurring.
The plaintiff in this case bases his claim to recover one undivided seventh of the premises described in the complaint upon a grant issued to his father in 1842, by Alvarado, who was then Governor of California. The grant is on file in the office of the Surveyor General of the United States; and on the trial, the plaintiff, after proving the signatures of the Governor and Secretary attached to [94]it, produced what purported to be a copy, and endeavored to establish its correctness as such copy by the testimony of a witness who had compared it with the original. Some question is made as to the effect of the testimony on this head, but we do not regard it as at all material; for, admitting the testimony to have been sufficient, the copy was but secondary evidence, and as such, was, of course, inadmissible until some excuse was given for the nonproduction of the original grant. If the original, as a document or record in the custody of a public officer, could not be taken from the office of the Surveyor General by the regulations of the department having charge of the public surveys, proof of the fact should have been made as a preliminary to the introduction of the copy. No such proof was made or attempted; and the objection on that ground of the appellant was, therefore, well taken. The plaintiff might have obviated the necessity of such proof, by producing a certified copy of the grant under the statute. (Session Laws of 1857, Ch. 254.) But not relying upon the statute, and acting independently of it, he should have laid the proper predicate for the introduction of a copy which the common law in such cases requires. (Hensley v. Tarpey, 7 Cal. 288.)
Judgment reversed and cause remanded for a new trial.
Opinion — Grantedrearguedfield
A rehearing having been granted, and the cause reargued, Field, C. J. delivered the opinion of the Court —Baldwin, J. and Cope,J. concurring.
At the July term we rendered a decision in this case, reversing the judgment of the Court below and directing a new trial, on the ground that the Court erred in admitting in evidence a copy of the grant to Francisco Soto, the father of the plaintiff, without any excuse being given for the nonproduction of the original. We held that if the original, as a document or record in the custody of a public officer, could not be taken from the office of the Surveyor General—where it was shown to be on file—by the regulations of the department having charge of the public surveys, proof of the fact should have been made as a preliminary to the introduction of the copy. But at the same time we observed, that the plaintiff might have obviated the necessity of such proof by producing a
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