Colton v. Seavey

Crocker, J. delivered the opinion of the Court—Norton, J. concurring. This is an action to recover the possession of a tract of land— part of the Rancho Laguna de San Antonio—in Sonoma County.. The case was tried by the Court, who found for the plaintiff, and judgment was rendered accordingly; from which, and from an order denying a new trial, the defendant appeals.

Both parties claim title under Bartolomé Bojorques. It appears that on the twentieth day of November, 1851, he executed to José Geraldo Bojorques, and seven others, a deed for the eight-ninths of said rancho. On the twenty-sixth day of June, 1852, José Geraldo Bojorques, Bartolomé Bojorques, and the other grantees in the former deed, with their wives, executed a deed to Barbara Ann Lewis for a part of the rancho, including the premises in controversy, and the plaintiff claims his title under this deed. On the seventh day of January, 1857, Bartolomé Bojorques executed a deed to José Geraldo Bojorques for the undivided one-ninth of the above named rancho; and on the same day the latter and his wife conveyed to Hamilton Gaston and eleven others the undivided one-ninth of said rancho, with this exception, “ saving and excepting from this sale eight hundred and seventeen acres heretofore conveyed [501]by the said parties of the first part.” The defendant claims Ms title under one of the parties to this deed.

The defendant contends that the deed to Barbara Ann Lewis, under which the plaintiff claims, conveyed no title, and is inoperative and void against the defendant. It is objected that the evidence does not prove that more than five of the grantors executed it, and that unless all executed it, it is inoperative and void. Several cases are cited relating to the execution of bonds by several parties, but such cases have no application to conveyances. Even if the evidence had shown that this deed was executed by only a few and not all of the grantors named in it, we thmk it clear that it would be good as to those who did execute and deliver it, and sufficient to convey then interest in the property. (Scott v. Whipple, 5 Greenl. 336; Jackson v. Stanford, 19 Geo. 14.) It appears to have been properly acknowledged by all the grantors, before a Justice of the Peace, and the signatures of all, by then marks, appear to the deed, which shows that it was duly executed by all of them. "

It is, however, objected that the land described in the deed then lay in Marin County; that this acknowledgment was taken by a Justice of the Peace of Sonoma County, and therefore it affords no proof of the execution of the deed, and does not authenticate it so as to authorize its registry m Marin County. The one hundred and thirty-fifth section of the Act of 1851, respecting Courts of Justice (Stat. 1851, 29, 30), provides that the Judges of the Supreme and certain other Courts “ shall have power in any part of the State, and Justices of the Peace witMn their respective counties,” to take and certify “ the proof and acknowledgment of a conveyance of real property, or of any other written instrument.” It is contended that under this provision a Justice of the Peace could only take an acknowledgment of a conveyance of real property situated in the county where he held Ms office. In this the appellant is mistaken. We think the intention of the Legislature is clearly expressed, that a Justice of the Peace might take the acknowledgment and make Ms certificate thereof anywhere within the county where he held Ms office, without regard to the locality of the land conveyed, but that he could not, like the Judges of the other Courts, take and certify