Sprague, J., delivered the following dissenting opinion : Appellant’s point, that the complaint does not state facts sufficient to constitute a cause of action is not tenable. In an action for the recovery of the possession of real estate, an allegation in the complaint that plaintiff is the owner of the demanded premises is equivalent to, and in substance the same, as an allegation that he is seized of an estate in fee in such premises, and is an assertion of the highest grade of legal title in the plaintiff, “in ordinary language,” in place of formal, technical terms. This answers the demands of our civil code, and from the allegation of ownership the right of immediate possession follows as a conclusion of law. Such an allegation, followed by an allegation that defendant is in possession of the premises, and withholds the s'ame from the plaintiff, if sustained by the evidence, is sufficient to entitle plaintiff to recover, without alleging or proving an ouster by defendant. (Payne v. Treadwell, 16 Cal. 244-5.)
On the trial, the defendant objected to the admission as evidence in behalf of plaintiff “of a certified copy of what purported to be a petition and grant of lot by Alcalde Leavenworth to Joseph W. Osborn, dated June 30, 1849, of one hundred varas square, bounded north by Washington street, east by Jones street, south by Clay street and west by unsurveyed lands, recorded in the office of the County Recorder in and for the City and County of San Francisco, in Book K of Deeds, page 241, March 21, 1850,” on the grounds then stated, and now urged by appellant, that there was no proof [225]of the execution of such grant, nor of the loss of the original, or that it was genuine.
Preliminary to offering this evidence plaintiff called a witness, C. Y. Gillespie, who testified that he had resided in the city of San Francisco nearly twenty years, “that he was a searcher of records, that he had seen Book K of Deeds first in Alcalde Geary’s office; it went to the County Clerk’s office, and afterward to the County Recorder’s office, after organization of the State. ”
So far as disclosed by the transcript, the offered evidence was a certified copy of a record made by the County Recorder of an original grant filed in his office for that purpose. The testimony of Gillespie only establishes that Book K, in which this record is found, was, at one time, before the organization of the State, in- the office of Alcalde Geary. Whether it was used by Alcalde Geary, or any of his predecessors, in their official capacity, for any purpose, or whether, while so in his office, prior to the organization of the State and the transfer of the same to the County Becorder’s office, it contained the record of which the offered transcript was a copy, does not appear. If from the fact that this Book K came from the office of Alcalde Geary, it could be presumed not only that, while so in his office, it contained the record of which a copy was offered, but further presumed that it came to his office from his predecessor Leavenworth; still, from the description of the offered evidence, as contained in the transcript, it would be a most extravagant presumption to assume that the record found therein was made by Alcalde Leavenworth in his official capacity, or by his authority or sanction as Alcalde, as it is stated that the grant was made by Leavenworth, June 30, 1849, and that this record was made March 21, 1850, nearly nine months thereafter, and it nowhere appearing that Leavenworth continued to act as Alcalde till March 21, 1850.
This record, therefore, cannot be regarded as an original entry or record of the official acts of Alcalde Leavenworth; hence, _ it is not entitled to the dignity of primary evidence for the purpose of establishing the existence or genuineness [226]of a grant from Mm. In this particular the case differs essentially from that of Donner v. Palmer (31 Cal. 508.)
The offered evidence, then, was secondary evidence, and seems to have been so regarded by the party offering the same, upon the assumption that the record, of which he offered a copy, was a transcript of an original grant, issued and delivered to Osborn by Alcalde Leavenworth, and subsequently copied into Book K, while in Alcalde Geary’s office, or'at the Recorder’s office; for after the objections of defendant, as above stated, plaintiff introduced a witness, A. J. Morrill, who testified “that he was the plaintiff’s agent, and had been for five years; that he had the custody and control of her papers; that she had not in her custody the original of these papers; that he had made great effort to find them; that he knew it was not among her papers; that he resided with plaintiff; she was his daughter.” After this preliminary testimony, the Court overruled defendant’s objections and admitted the evidence.
This testimony of Morrill in no respect tends to meet or remove the objection that “ there was no proof of the execution of such a grant, or that it was genuine,” and was, evidently, only offered as preliminary proof that the original grant was not under the control of the plaintiff, or was lost; and even if regarded as sufficient to establish the fact of non-control of the instrument by plaintiff, or its loss, it does not follow that the certified copy of the record offered could properly be read in evidence.
It does not appear, as in the case of Touchard v. Keyes (21 Cal. 209), that Book K was a book of records of deeds kept by Geary, or any Alcalde of San Francisco, prior to the organization of the State; and even if it had so appeared, we apprehend that unless it appeared upon the face of the offered copy that the execution of the original grant, or conveyance, had been duly acknowledged or proved before recorded, it could not be read in evidence until preliminary proof had been made that the original grant or conveyance was genuine, and was executed by the grantor named therein as required by Section 2 of the Act supplementary to the Act concerning conveyances (Statutes of 1860, p. 357.) In the [227]case of Touchard v. Keyes (supra), this preliminary proof appears to have been made.
“ Books of records of deeds, mortgages, powers of attorney and other instruments kept by or in the possession of any Alcalde, Judge of First Instance, Notary or other officer,” are required to be delivered to the County Clerk, and by such Clerk required to be transferred to the Recorder of his county, as provided by Section 39 of Chapter 23, and Section 1 of Chapter 93, Statutes of 1850, and now in pursuance of these laws, to be found in the office of the County Recorder of the proper county; as “Books of Record,” simply, are clearly not entitled to a greater degree of verity or higher rank as evidence, than other records or transcripts made and kept by County Recorders of deeds and other instruments of writing inter partes, in pursuance of law, unless such books contain what purports to be, and in fact are, the original entries and records of the official acts of the public officers and tribunals from which they come, and where the entries or records contained in such books are stamped with such original character, they are entitled to be considered and treated as public official records, and to rank as primary evidence (Donner v. Palmer, supra) and a certified transcript of these original entries and records from the officer having the official legal custody thereof, occupies the same rank as evidence.
It is an elementary rule of evidence, that the best evidence of which the case in its nature is susceptible, must always be produced. In this case, plaintiff is seeking to establish an Alcalde grant as the source of her title. The best evidence of such a grant is the official public record of the acts of the Alcalde by whom the grant was made; and if such a grant as is claimed by plaintiff was in fact made by Alcalde Leavenworth, in June, 1849, evidence of that fact undoubtedly exists in the book of original grants, in the form of original entries or records of the official acts of that Alcalde, of the- date the same was made, attested by his signature, and now to be found in the possession of the County Recorder of San Francisco County—the official custodian of such books. And if, as is sometimes the case, these entries [228]should not contain a full statement of all the proceedings of the officer in consummating the grant, or an entry in full of the grant as made, there would be found a summary statement of such proceedings sufficient to determine definitively the making of the grant, the subject-matter thereof, to whom and when made; and a production of this record, or a certified copy thereof, would have, at least, met the demands of the statute of 1860, hereinbefore referred to, and established the genuineness of the grant. In the absence of this, or any secondary evidence tending to establish the genuineness or due execution of the grant claimed, the certified copy from Book K of Deeds was, in my judgment, improperly admitted in evidence.
In the chain of plaintiff’s title connecting her with the original grant of the demanded premises, she offered in evidence a deed from Kerst Kinsey, and his wife, Eliza S. Kinsey, to Mrs. Henrietta Morrill, the immediate grantor of plaintiff, dated November 10, 1864. As appears from the evidence found in the transcript, Mrs. Eliza S. Kinsey purchased a portion of the demanded premises in December, 1853, while she was the wife of Ebenezer Sooy, and took a deed of the same to herself under the name of Eliza S. Henderson ; and she subsequently, sometime after the year 1858, Avas married to Kerst Kinsey, who united with her in the deed of the premises to Mrs. Henrietta Morrill. Mrs. Kinsey was first married to Ebenezer Sooy, in New Jersey, in the year 1848. There is no affirmative evidence of the death of Ebenezer Sooy, or of any legal dissolution of the marriage relations between him and Eliza S. Sooy, now Mrs. Eliza S. Kinsey. The money which Mrs. Eliza S. Sooy, alias Henderson, paid for the premises in 1853 was earned by her while she was the wife of Sooy; hence, on the purchase, the premises became the common property of Mr. and Mrs. Sooy; and now, Avhether the deed of Kerst Kinsey and his reputed wife, Eliza S. Sooy, to Mrs. Morrill, conveyed any interest in the premises therein described, depends on the death, actual or constructive, of Ebenezer Sooy prior to November 10, 1864.
As this Court will presume the Court beloAv to- have found [229]all the facts necessary to sustain its judgment, and as it is necessary to sustain the judgment, that effect should be given to the deed from Kinsey and wife to Mrs. Morrill, as a conveyance of the premises or some undivided portion thereof, and this could not be done if Sooy was found to be alive at the date of the deed, it must be presumed the Court below found the fact of Sooy’s death prior to November 10, 1864. Insufficiency of the evidence to sustain this finding is one of defendant’s grounds for his motion for a new trial. All the evidence to sustain this finding is contained in the deposition of Eliza S. Kinsey, which, so far as the same bears upon this question, is in substance as follows : She was married to Ebenezer Sooy in Atlantic County, New Jersey, about the year 1848; does not know whether he is dead or alive; has not heard of or seen him for at least seventeen years; he left this State for the Sandwich Islands about 1850. The deposition of Mrs. Kinsey further shows that she was in San Francisco in 1853, when she purchased the lot, and frequently visited the premises after her purchase thereof.
A person who is shown to have been absent from the State or place of his residence for a period of seven years, without any intelligence having been received from him by his family, acquaintances or others, who continue in the immediate neighborhood of such residence, is presumed to be dead. Such absence must be shown to have been from his last known place of residence. (Speer v. Tremble, 1 A. K. Marshal, 278.)
In this case no such proof is made. It is not shown that Ebenezer Sooy ever acquired a residence in this State; for aught that appears, his residence may have been in the State of New Jersey since his marriage there in 1848.
The witness, Eliza S. Kinsey, who was married to Sooy in New Jersey, in 1848, by her own testimony, is found residing in San Francisco, California, as early as 1853, five years after her marriage with Sooy, under an assumed name, since which time she has taken several other names, but, so far as shown, at no time has she recognized her name of Sooy. Her own testimony raised a very strong probability that, [230]since coming to California, she endeavored to evade, and conceal herself from her first husband, Sooy. Under such circumstances, I do not think a presumption of Sooy’s death can properly arise from her simple statement that she has not seen or heard from him for seventeen years.
In my opinion, the judgment and order should be reversed.