McMinn v. O'Connor

California Supreme Court Jul 1, 1865Published

Before: Currey

AI Brief

AI-generated · verify before citing

Holding. The court affirmed the judgment for the plaintiff, holding that the trial court correctly excluded evidence of the defendants' title claims because they were either jurisdictionally defective, required a supplemental answer, or were otherwise legally insufficient.

Issues

Whether a certified copy of a deed with a defective acknowledgment is admissible as evidence under the Act of 1860 upon proof of the original's execution.
Whether the execution of a deed by a foreign resident can be proven without the testimony of an attesting witness.
Whether a defendant may introduce evidence of title acquired after the commencement of an action without a supplemental answer.
Whether the trial court abused its discretion in denying a motion to postpone the trial or amend the answer.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The deed from Maume to Dundon, as found copied in the book of records, was not duly filed for record nor duly recorded, because it was not acknowledged or proved so as to entitle it to be filed and recorded”

Synopsis

Acknowledgment of a Deed. — A consular agent of the United States in a foreign port, on the 15th of January, 1859, or prior thereto, was not empowered to take and certify the acknowledgment of the execution of a deed conveying real estate in this State.

Certificate of Acknowledgment of Deed.—A certificate of the acknowledgment of the execution of a deed is defective if it does not state that the person making the acknowledgment is known to the officer, or proved to him to be the person described in and who executed the same.

Certified Codies of Deeds as Evidence.—Copies of deeds duly filed for record in the Recorder’s office of the proper county, or which, after having been duly filed for record, have been recorded in the proper book of records, are admissible in evidence in all Courts and in all actions and proceedings with the like effect as the originals could be if produced, upon proof of the loss of the originals, or that they are not in the power of the party offering the copies.

Deeds duly Recorded.—Deeds not properly acknowledged or proved, but filed for record or recorded in the proper book of the proper county, are not duly filed for record or duly recorded.

Certified Copy of Recorded Deed not duly Acknowledged as Evidence.— A certified copy of a deed filed for record, or recorded in the proper book of records prior to the Act of April 30, 1860, but which was not acknowledged or proved as required by law, is not admissible in evidence without proof being first made that the original deed was genuine, and was, in truth, executed by the grantor or grantors therein named.

Deed not duly Acknowledged, Executed and Witnessed in a Foreign Country.—Where a deed not properly acknowledged is executed and witnessed by a subscribing witness in a foreign country, proof that it was executed by the grantor is sufficient to entitle it to be received in evidence without producing the attesting witness, or accounting for his absence, or proving his handwriting. Evidence of Title acquired pending Litigation.—If the defendant in an action to recover possession of real estate has acquired title to the demanded promises pending the litigation, evidence of this fact cannot be introduced, unless it is pleaded as a defense in a supplemental answer.

Certificate of Purchase as Evidence.—A certificate of purchase of real estate, executed by a Sheriff on a sale made by virtue of an execution issued on a judgment, is incompetent as evidence to establish any right, either legal or equitable, to the possession of the premises therein described.

Discretion of Court in allowing Amendments.—If the defendant in an action to recover possesion of real estate has acquired title to the demanded premises pending the litigation, and has not pleaded such title in a supplemental answer, and for that reason his evidence of such title is excluded by the Court, it is not an abuse of the discretion of the Court to deny his application made during the trial, to be allowed to amend his answer so as to obviate the objection.

By the Court, Currey, J. Ejectment for one hundred vara lot Number Three Hundred and Nine, in the City of San Francisco. Both parties claim the property as derived from one Mathew Maume, the common source of title. The plaintiff claims under a deed from Maume to one Michael Dundon, dated January 15, 1859, and a deed from Dundon to himself, dated May 10, 1861. The defendants claim through a Sheriff’s deed bearing date the 11th of June, 1861, made in pursuance of a sale under an execution issued upon a judgment in favor of one Timothy Gleason against said Maume, rendered on the 27th of October, 1860.

The plaintiff at the trial offered in evidence a certified copy of the deed from Maume to Dundon. But to lay a proper foundation for admitting in evidence a copy of the deed under the second section of the Act supplementary to the Act concerning conveyances, passed April 30,1860 (Laws 1860, page 357,) the plaintiff proved by a witness that he had seen a deed in the hands of Dundon which was executed by Maume, of which the certified document offered in evidence was a copy. The defendant objected to the introduction of the same in evidence, on the ground that the certificate of acknowledgment of the deed was not by an officer authorized by law to make it, and also that the certificate was in form and substance insufficient.

The acknowledgment purported to have been made before, and certified by Michael B. By an, styling himself “ Consular Agent of the United States for the port and district of Limerick.” When this was done a Consular Agent was not an officer empowered by the statute, concerning conveyances, to take and certify the acknowledgment of the execution of a [243]deed conveying real estate, and therefore this certificate was ineffectual as evidence. Besides this, it was radically defective, as it failed to show that Maume was known to the officer or proved to him to be the person described in or who executed the conveyance. But, notwithstanding the insufficiency of the acknowledgment, the deed was recorded in one of the books of record of deeds in the county in which the lot is situate, on the 20th day of November, 1859.

The first section of the Act of 1860 provided that all instruments of writing which were then copied into the proper books of record of the office of County Recorder of the several counties of this State should thereafter be deemed to impart to subsequent purchasers and incumbrancers, and all other persons notice of all deeds, etc., to the extent that the same were then recorded, copied or noted in such books of record, notwithstanding any defect, omission or informality existing in the execution, acknowledgment, certificate of acknowledgment, recording or certificate of recording the same.

McMinn v. O'Connor

AI Brief

Synopsis

More from California Supreme Court

Related research

AI Brief