TOUCHARD et al. v. KEYES, 21 Cal. 202

Field, C. J. delivered the opinion of the Court Cope, J. concurring. In this State, by statute, tenants in common can unite in an action for the possession of real property. (Laws of 1857, ch. 68.) And executors and administrators can maintain such actions in all cases where their testators or intestates could have maintained them, until the administration of the estates they represent is closed, or the property is distributed under decree of the Probate Court. (Meeks v. Hahn, 20 Cal. 620.) The executor of Mat-they and the tenants in common with him are, therefore, properly joined as plaintiffs.

The present action is for the possession of real estate situated in the county of Marin, and the plaintiffs base their right to a recovery upon a grant issued by Pio Pico, Governor of the Department of California, to Juan Padilla, in June, 1846, and sundry mesne conveyances from the grantee. Of these mesne conveyances through which the plaintiffs trace title, one executed in November, 1849, could not be produced. Its execution was shown, and proof was made of diligent but unsuccessful search for it by persons with whom and in places where it would probably be found if in existence.

The plaintiffs thereupon offered a certified copy of the conveyance from the records of deeds kept by the Alcalde of the district of Sonoma in 1849. This district embraced the territory comprising the present counties of Marin and Sonoma, and adjoining counties. The records are now in the custody of the Recorder of Sonoma County, and the certificate to the copy offered was made by him. Upon objection of the defendant, the certified copy was excluded by the Court.

The specific ground of the objection is not stated in the transcript before us, but we infer from the argument of counsel that it was this: that the statute had not legalized the records, or authorized copies of instruments found in them to be received in evidence ; in other words, that the records were mere private entries of the Alcalde, not made in pursuance of any law, or custom having the force of law, or since recognized by any law, and, consequently, had not the dignity of other records in the Recorder’s office.

If this be the specific point of objection, and no other is suggested by counsel, it was not well taken. In the settlement of California by citizens of the United States, after the conquest, and until the organization of the State Government, and the establishment of Recorders’ offices in the different counties, the local Alcaldes were the only officers (with one or two exceptions) who kept any records of conveyances. Whether there was any authority by law to keep such records it is not necessary to inquire.

Either from supposed authority of existing law or general consent, every one resorted to them for the registration of his deeds, and also for examination as to titles held by others. And the Legislature, at its first session under the Constitution, recognized, by repeated acts, the records of deeds and other instruments kept by them as public records which were subject to its control. On the twenty-eighth of February, 1850, it passed

an act providing that “ Boohs of records of deeds, mortgages, powers of attorney, and other instruments, hept by or in the possession of any Alcalde, Judge of the First Instance, Notary, or other officer, shall be delivered to the County Clerk of the county which the District Judge may direct, upon the election and qualification of each County Clerk, to be by him kept and disposed of according to law.” (Ch. 23, sec. 39.) And on the thirteenth of April of the same year, it passed another act, requiring the County Clerk to transfer these “ boohs of records of deeds, mortgages, powers of attorney, and other instruments,” to the Recorder of his county within ten days after the same should come into his possession, and the County Recorder to keep and preserve them “ as part of Ms records.” (Ch. 93, secs. 1, 2.) And by the twenty-first

section of the Act of March, 1851, concerning County Recorders, the Legislature of the following year provided, that “ copies of all papers duly filed in the Recorder’s office, and transcripts from the boohs of records hept therein, certified by the Recorder to be full, true, and correct copies or transcripts, shall be received'in ah 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.” (Ch. 25, sec. 21.) This

section applies as much to copies from the Alcalde records, which by the Act of April 13th, 1850, are to be kept by the County Recorder as “ part of his records,” as it does to records made under the Act of 1851. In adopting it, the Legislature was aware of the fact that the Alcalde records had been deposited in the offices of the different County Recorders, pursuant to the legislation of the previous year, and were kept by them as part of their records.

The Legislature was also aware that these Alcalde records were the only ones (with one or two exceptions) kept in the country during the period intervening between the conquest and the organization of the State Government, and that they contained the only evidence which could, in the vast majority of cases, he produced of transfers of real property during that period.

Indeed, it would not, perhaps, he going too far to say that in nine instances out of ten—owing to the migratory habits of the people at the time, the numerous fires which had swept over pur principal cities and towns, and to circumstances peculiar to a new and unsettled country—it would be impossible for parties to produce the original instruments by which title to real estate was transferred during this period.

The Legislature, therefore, placed the Alcalde records on a footing with other records kept by the County Recorder, and a certified copy of an instrument found therein is admissible under the same circumstances as are certified copies of records made by himself—upon proof of the loss of or the inability of the party to produce the original. The District Court, therefore, erred in excluding the certified copy offered in .the present case. This error requires a reversal of the judgment, and renders it unnecessary to consider the other errors assigned by the appellants.

Judgment reversed and cause remanded for a new trial.