Delmas v. Martin

Crockett, J., delivered the opinion of the Court, Sprague, J., and Temple, J., concurring :

The action is to recover a lot in the City of San Jose, and the plaintiff deraigns title through a grant made in 1847, by the Alcalde, to one Yillagrana, a deed from the latter to Peter Davidson, made in June, 1847, and a conveyance from Davidson to the plaintiff, made in April, 1867. The defendants claim that the alleged grant to Yillagrana, is void for uncertainty; and deraign their title to the premises.under conveyances from the City of San Jose, as successors in interest to the former pueblo of that name. On the trial, the Court held the,grant to Yillagrana to be valid and sufficiently certain ; and the defendants, in order to establish an outstanding title in a third person, then put in evidence a conveyance ^from Davidson to one Black, made in 1847, nearly twenty years prior to .the conveyance from the same grantor to the plaintiff. To rebut this evidence, the plaintiff put in evidence a deed from Black to himself, bearing date in the [556]year of 1867, a few days prior to the commencement of this action, and which had not been recorded at the time of the trial. A verdict and judgment having been rendered for the plaintiff, the defendants moved for a new trial; one of the grounds of the motion being surprise of the defendants, by the introduction of the deed from Black to the plaintiff. In support of this branch of the motion, the affidavit of said Black was produced, from which it appears that, in 1848, he sold and conveyed whatever interest he had in the lot to Le Page, and that when applied to, in 1867, to make the conveyance to the plaintiff, he informed the plaintiff’s agent of the prior conveyance to Le Page, and that he had no title to convey to the plaintiff; but being requested by the agent to sign and deliver the deed, he did so, without having received any consideration therefor. The affidavit of defendant, Martin, was also produced, in which he states that through mesnes conveyances from Black, he acquired, in 1853, all the title that Black ever had to said premises, and that the plaintiff well knew this fact when he took the deed from Black in 1867 ; that the deed from Black, made in 1848, was lost, and has never been recorded; that neither the defendant or his counsel had any knowledge or notice of the deed from Black-to plaintiff, until the same was offered in evidence; that if he had known of the existence of the deed, he would have been prepared with proof to show the conveyance from Black to Le Page; but being surprised by the production of the deed to plaintiff on the trial, he was unable then to prove it, because the only witness by whom he could establish it resided in Sonoma County, at a considerable distance from the place of trial; that before the trial, and in ignorance of the deed from Black to the plaintiff, he was advised by his counsel that it was useless to prove the conveyance from Black to Le Page, and to deraign the title under it, inasmuch as the plaintiff would not be able to connect himself with the title of Black. The motion for a new trial was denied, and the defendants have appealed. We think the surprise was sufficiently established, and that-a new trial ought to have been granted on this ground. The defendants had no reason to. infer that, .after having conveyed his title to Le