Brown v. Griffith

McKinstry, J. At the trial, the plaintiffs produced books of the recorder of Fresno County, and offered in evidence matter recorded on certain pages thereof, for the purpose of proving the execution and contents of conveyances, and of a power of attorney to convey real estate. The defendants objected to the record as not the best evidence, and as not being admissible to prove the execution and contents of the instruments, until the absence of the original was explained or accounted for. The objection was overruled. This was error.

By section 1894 of the Code of Civil Procedure public records of private writings are included in “public writings.” Section 1893 of the same code, as originally passed, provided: “Every public officer having the custody of a public writing which a citizen has a right to inspect is bound to give him on demand a certified copy of it, on payment of the legal fees therefor, and such copy is primary evidence of the original writing.”

July 1,1874, section 1893 was amended so as to read as follows:—

“Every public officer having the custody of a public writing which a citizen has a right to inspect is bound to give him on demand a certified copy of it, on payment of the legal fees therefor, and such copy is admissible as evidence in like cases and with like effect as the original writing.”

Section 1951 was added to the Code of Civil Procedure on the day last mentioned. That section is:—

“ Every instrument conveying or affecting real property, acknowledged or proved and certified as provided in the Civil Code, may, together with the certificate of acknowledgment or proof, be read in evidence in an action or proceeding without further proof; and a certified copy of the record of such conveyance or instrument [16]thus acknowledged or proved may also be read in evidence, with the like effect as the original, on proof, by affidavit or otherwise, that the original is not in the possession or under the control of the party producing the certified copy.”

The section relates to the precise subject, fixes the rule, and determines under what circumstances and upon what proof the certified copy of the record of a private conveyance or instrument affecting real property is admissible. Canfield v. Thompson, 49 Cal. 210, was decided on facts occurring before section 1951 was adopted. Since its adoption, it is plain that section 1893 (in so far as it makes certified copies admissible “ with like effect as the original writing” primary evidence) relates to certified copies of public writings other than those mentioned in the fourth subdivision of section 1894.