Hurlbutt v. Butenop

By the Court, Shafteb, J. This is an action of ejectment brought to recover the possession of Block Sixty-seven, situated in the City of Oakland, and is parcel of lands granted by the Mexican Government to Peralta. Both parties claim under the said grantee. The plaintiff, at the trial, offered in evidence, as part of his dcraignment from Peralta, a certified copy of the record of a deed from Irving to one Marshal. The plaintiff was sworn and testified that he “ never had control of the original deed, and that it was not then in his power or control.” The defendant [55]objected to the admission of the document, on the ground that there was not sufficient evidence of the loss of the original, and that no diligence had been used to produce it. The objection was overruled by the Court, and the defendant excepted.

This ruling was correct. (Skinker v. Flohr, 13 Cal. 638.)

The plaintiff, having connected himself with J. C. Hays and others, grantees of Peralta, by deed dated March 13,1852, and recorded March 17, 1852, on a defective acknowledgment, and having further proved that Peralta was in possession of the property in 1849, and that defendant was in possession at the commencement of the action, July 30, 1860, rested his case. The defendant then gave in evidence a deed of the premises from Peralta to Francisco Galindo, dated October 8, 1857, and recorded on that day, and a deed from Galindo to defendant, dated July 27, 1860, duly recorded. The defendant also introduced a tax deed to himself, dated July 27,1860, recorded June 20, 1861. The plaintiff, in rebuttal, produced the tax certificate showing that the sale was to Henry Butenop and not to defendant, and also gave in evidence a deed from Galindo to Pacheco, dated September 24, 1858, and recorded on that day ; and also the judgment roll in an action brought by Edward Gibbons against Peralta and wife, Galindo, and Pacheco, on the 2d of February, 1859, in which action it was adjudged that the aforesaid deed from Peralta to Galindo, and the deed from Galindo to Pacheco, were fraudulent and void as to the plaintiff Gibbons, “ and those on whose behalf he sues.” It appears by the record that Gibbons sued on his own behalf and on behalf of all others claiming, as he claimed, under the deed of Peralta to Hays and others, of March 13, 1852. A notice of Us pendens was filed in the action, and, as we understand the record, on the day the action was brought.

The Court instructed the jury that the plaintiff had proved title in himself—that the defendant had failed to make out a defense, and that the plaintiff was entitled to a verdict—to which charge the defendant excepted.