McMinn v. O'Connor

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. The second section of the same Act declared that duly certified copies of such instruments might be read in evidence under the same circumstances and rules as then were, or thereafter might be provided by law for using copies of instruments duly executed and recorded; ¡provided that proof should be made in the first instance that the instruments, copies of which should be offered in evidence, were genuine instruments, and were in truth executed by the grantor or grantors therein named. Since this Act became the law of the State, is has so remained. It here becomes important to know under what circumstances and rules of law copies of deeds duly executed and recorded could be used as evidence when this action was tried. The thirtieth section of the Act concerning conveyances, passed in 1850 (Laws 1850, p. 252,) provided that a deed of conveyance of real estate duly acknowledged or proved, certified and recorded in the manner prescribed in that Act, might be proved by producing in evidence the record thereof, or the transcript of such record certified by the Recorder under the — 244 — seal of his office; provided, it should first be shown to the Court that such, deed was lost or not within the power of the party wishing to use it. Under the Act here referred to, it was incumbent on a party who resorted to proof of a deed by producing a copy of it certified as prescribed, to establish the fact that the deed itself was lost or beyond his control, before he could avail himself of the use of a copy. In 1851 the Act concerning County Recorders was enacted, the twenty-first section of which reads as follows: “ Copies of all papers duly filed in the Recorder’s office, and transcripts from the books of records kept therein, certified by the Recorder to be full, true and perfect copies or transcripts, shall be received in all Courts, and in all actions and proceedings with the like effect as the original instruments, papers and notices recorded or filed, could be if produced.” This provision of the Act of 1851, gave to a certified copy of a deed duly filed in the Recorder’s office, or which being so filed was duly recorded the like effect as evidence as the original of which it was a copy. The certified copy of a duly filed and recorded deed was proof of the execution of the deed, because the execution of it by the grantor necessarily had to exist as a condition precedent to its becoming’duly filed in the Recorder’s office, or to its becoming duly recorded. Then when, after the passage of this Act, a copy of a deed, duly filed and recorded, might be given in evidence in an action in a Court of justice, it became of equal probative force as the original deed would have been, had it been produced and its execution proved, and then given in evidence. (Powell’s Heirs v. Hendricks, 3 Cal. 430.) 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, and therefore a certified copy of the deed as it stood recorded did not prove the genuineness and due execution of the deed itself; and hence it was necessary,, in order to make the certified copy evidence, to prove the existence of the original deed, and that it was executed by the — 245 — person purporting in the copy thereof to be the grantor. For this purpose evidence was introduced of the execution by Mathew Maume of the deed of which the certified copy obtained from the Recorder was given in evidence. No objection seems to have been made to this species of evidence on the ground that the plaintiff had not shown to the Court that the original was lost or not within his power; and if such an objection had been made, we do not see how it could have prevailed without disregarding the twenty-first section of the Act of 1851, provided the deed in question, with the certificate of the Consular Agent, is to be deemed of a character falling within the purview of the Act of I860; and that it was and is of such character we must hold in the affirmative upon the construction of that Act by this Court in the cases of Wallace v. Moody, 26 Cal. 97, and Landers v. Bolton, 26 Cal. 393. Another objection was made to the introduction of this copy of the deed, which was that as from the copy produced, the deed purported to have been executed in the presence of an attesting witness, it was not competent to prove its execution otherwise than by him. The deed was executed in Ireland, and the presumption is that the subscribing witness resided and remained there, and being a resident of a foreign country at the time of the trial, it was competent to prove the execution of the deed without producing the attesting witness, or otherwise accounting for his absence beyond the jurisdiction of the Court. But it is insisted on the part of the defendants that the handwriting of the attesting witness to the absent deed should have been proved before admitting the certified copy in evidence. The questions of law herein involved have been fully considered in the case of Landers and Wife v. Bolton, 26 Cal. 393, and to that case and the authorities therein cited, we refer in justification of the ruling of the Court below. The plaintiff having established a case which entitled him to recover the demanded premises, the defendants offered to show that one of the defendants had acquired title thereto by — 246 — a deed bearing date on the 11th of June, 1861, through a judgment obtained by Timothy Gleason, on the 27th of October, 1860, against Mathew Maume, in an action commenced in the District Court of the Twelfth Judicial District, in and for the City and County of San Francisco, on the 2d day of November, 1859; and for this purpose the defendants proposed and offered to produce in evidence the judgment roll and all the proceedings in the case of Gleason, plaintiff, against Mathew Maume and others, defendants, and the deed of the lltli of June, 1861. The plaintiff objected to the evidence so offered on the ground that the record in that case showed that the Court acquired no jurisdiction of the person of the defendant, Mathew Maume, and the objection was sustained. The defendants’ counsel have directed their argument very fully to the point that the Court below erred in excluding the evidence so offered, and on the side of the plaintiff the questions involved in this point made on the part of the defendants, have been elaborately discussed. We have, examined this jurisdictional objection interposed by the plaintiff, and regard it as well founded. The same question exists „ in the case of McMinn against Whelan and O’Connor, (reported in this volume,) and to our opinion in that case we refer for the reasons for our determination respecting the judgment in the case of Gleason against Maume. For the purpose of showing that as to a portion of the demanded premises the title had passed to one of the defendants since the action was commenced, the defendants offered in evidence a tax deed executed on the 19th day of July, 1862, by the Tax Collector, to the defendant, R. F. Ryan. This evidence was objected to by the plaintiff, on the ground ■ that it could not be given in evidence without pleading it by supplemental answer, and the objection seems to have been sustained, though the record is somewhat ambiguous on the point, and to this ruling the defendants excepted. The two hundred and fifty-sixth section of the Practice Act provides that “in an action for the recovery of real property, where the plaintiff shows a right to recover at the time the action — 247 — was commenced, but it appears that his right has terminated during the pendency of the action, the verdict and judgment shall be according to the fact; and the plaintiff may recover damages for withholding the property.” The plaintiff’s right to recover a specific portion of the property, the defendants proposed to controvert by matters arising after the commencement of the action and two months before the trial. The fact proposed to be proved by the tax deed was affirmative matter and should have been set up by a supplemental answer, and then the plaintiff would have been apprised of what he would in such event have been required to meet. Facts which occur subsequent to filing an answer materially affecting the rights of the respective parties to the advantage of the defendant, and which if in evidence would necessarily change the result to the detriment of the plaintiff, should be embodied in a supplemental answer to authorize evidence of them without the plaintiff’s consent.. {Van Maren v. Johnson, 15 Cal. 311.) Whether the tax deed would have constituted evidence of, a transfer of any portion of the premises to the grantee therein named it is not necessary to decide in this case. It is enough that it was objected to at the threshold for the reason assigned. Its exclusion by the Court, which we hold to have been correct, also excludes the question as to its validity from consideration. The defendants also offered in evidence a judgment of a Justice’s Court, obtained by George E. Worn against Michael Dundon and others, and proposed, further, to prove that an execution was issued on this judgment and that a sale was made thereunder of Dundon’s interest in the premises, and that the defendants had become the assignees of the certificate issued to the purchaser at such sale. The plaintiff objected that the proposed evidence should have been pleaded as an equitable defense, and the Court sustained the objection. It does not appear, by the offer or otherwise, when the sale under this judgment was made. If the time for redemption had not expired, the evidence was wholly incompetent to establish any right in the defendants, either legal or equitable, to the — 248 — possession of the premises. If the time for redemption had passed, the defendants should have obtained their deed to which they would have been entitled, and then interposed their new defense by a supplemental answer. There can be no doubt of the correctness of the decision of the Court in excluding the evidence which the defendants thus proposed to give. The defendants allege that the Court erred in refusing to postpone the trial of their cause upon the motion and affidavits in support of it, and also in refusing their application to be allowed to amend their answer so as to obviate the objections interposed by the plaintiff to the evidence offered by the defendants and excluded by the Court. Matters of this kind rest very much in the discretion of the Court, which should be exercised for the promotion of just ends, and in the case before us we are of opinion this discretion was properly exercised. Judgment affirmed. Mr. Chief Justice Sanderson expressed no opinion.