Heinlen v. Martin

CROCKETT, J. It is urged by the defendants that the action is ejectment and that they were entitled to a trial by jury. But the point is not well taken. The plaintiff deraigns his title through the power of attorney to Camarena, a copy of which is annexed to and made a part of the complaint. This instrument was not under seal, and was therefore insufficient to authorize á conveyance' of the legal title. If the pleader in the complaint put a false construction on the power of attorney, this will be rejected as surplusage, as the error appears on the face of the instrument which forms a part of the complaint: Stoddard v. Treadwell, 26 Cal. 302. But taking the whole complaint together, we do not understand it as asserting that the legal title was in the plaintiff. On the contrary, its obvious purpose was to have the defendants declared to be trustees, holding the legal title for the use of the plaintiff, and to compel a conveyance, with a delivery of the possession and an accounting for the rents and profits. The cause of action stated in the complaint is one of purely equitable cognizance.

Nor did the court err in admitting in evidence the two depositions of Melone. The evidence was material and competent, and it was admitted that the witness was disabled by sickness from attending at the trial. His deposition entitled as having been taken in the case of Senter v. Bernal was taken in a proceeding to which the present plaintiff and defendants were contesting parties, and related to the same subject matter which is in controversy in this action. Both depositions were taken upon due notice to these defendants, and no objection is made to the manner of taking or authenticating them. We discover no ground on which they could have been properly excluded.

One of the points relied upon by the defendants is, that the power of attorney to Camarena did not authorize him to appoint a substitute in respect to the sale and conveyance of the land in controversy. But the point is not tenable. The power of substitution contained in the instrument is coextensive with the power conferred on the attorney himself.

The most important question in the case is that which relates to the execution, delivery and authentication of the power of attorney to Camarena and his substitution of Splivalo. Each of these instruments was executed in the repub[22]lie of Mexico before a notary public, in the method which is usually observed in countries where the civil law prevails. The parties appeared before the notary and made a declaration of the specific powers which they intended to confer upon the attorney. The declaration was reduced to writing by the notary in a book kept by him as an official record for that purpose, and when completed was signed by the parties and attested by the notary and two witnesses. A copy or duplicate was then made by the notary, who attested in his official capacity. This official copy was delivered to the attorney, and it was this which was offered in evidence at the trial as an examined copy, proof having been adduced to show that it had been compared with the original in the official record and was correct. The execution of the original was also proved by one or more of the subscribing witnesses.