Pierce v. Wallace

Citations

• 18 Cal. 165

Syllabus

<p>Ejectment on an Alcalde grant of a town lot in San Jose, made January, 1847. Plaintiff proved by one Weeks that he was Alcalde for San Jose during October, 1847, and as such, recorded the original petition and grant in Book 3 of Deeds, in the Recorder’s office of Santa Clara county; that the grant was signed by the genuine signature of Bin-ton, Alcalde at its date; and that the record shown is a true copy of the petition and grant. Plaintiff then proved that neither the petition nor grant is now in the Recorder’s office. He then offered his own affidavit to account for the nonproduction of the original petition and grant, in effect, that lie had never seen said petition or grant; that he had made “ a full, thorough, diligent and careful search for the same among his papers and effects, and in every locality and place where the same might reasonably be expected to be found, and that he has inquired of every person who might reasonably be expected to have said original petition and grant, or either of them, and of every person who might reasonably be expected to know where the same might be found,” without success; and that he believes they are lost or destroyed. The affidavit of the widow of the grantee—upon whose estate there was no administration—was also read, stating that she has searched among- her papers without effect: Held, that this proof sufficiently accounted for the nonproduction of the original grant to admit in evidence the record thereof as found in Book 3 aforesaid; that it was not necessary to the validity of, the grant, that proof should be made of the petition—the grant, if properly issued, being- the effective paper.</p> <p>It is sufficient in such case, prima facie, to show that the grantee, or his representative or assignee did not have the grant, and that it was not in the place where it was last seen.</p>