Fischer v. Lukens

This is an action to quiet title. The pla.i-ntiff had judgment in the trial court. Pacific Invest

Appellant’s first objection is that the execution sale was invalid on the ground that at the time the clerk of the trial court issued the writ, the jurisdiction of the trial court had been divested by virtue of an appeal duly perfected. This point was discussed and determined adversely ’ to the contentions of the defendant and appellant in the opinion of division one of this court upon the former hearing of this matter ( 178 Pac. 302 ). We agree with the conclusion reached in that opinion. As stated therein, the facts regarding the appeal in the action against the Western Fuse and Explosives Company, and pertinent to this appeal, are few and they are all admitted. The first appeal was taken regularly and the execution was duly stayed. Later that appeal was disposed of and a remittitur was sent down. The remittitur was dated May 9, 1910. It was filed September 13, 1916, nunc pro tunc, Mlay 11, 1910, pursuant to an order of the trial court made on that date. The record is silent as to when, if at all, the clerk of the trial court did “attach the certificate to the judgment-roll, and enter a minute of the judgment of the supreme court on the docket against the original entry.” The writ of execution was taken out August 1, 1913, and the sale was had September 8, 1913. [1] As the record contains no evidence to the contrary, we must presume that the clerk of the supreme court promptly transmitted the remittitur after its issuance; that it was duly received; that the clerk of the trial court duly received it, and thereafter that he did prbmptly “attach the certificate to the judgment-roll, and enter a minute of the judgment of the supreme court on the docket, against the original entry.” (Code Civ. Proc.,

This leaves for our consideration only the one question of whether or not the trial court erred in refusing to admit in evidence the record of a deed from the Western Fuse and Explosives Company to E. G. Lukens through which deed appellant claimed to deraign title to the property .in question. The objections urged against the admission'"of the record of the deed are that from said record it does not appear that a corporate seal was attached to the deed; that there was no proof by the defendant of delivery of the deed to the grantee, and, further, that the deed was void because it purported to have been executed on behalf" of the corporation by E'. G. Lukens as president thereof, to himself personally, and that the consideration recited in the deed being a mere nominal consideration, and said defendant having failed to show that an adequate consideration was paid by said Lukens to said corporation, the deed was prima facie void.

The original deed having .been lost, appellant offered in evidence the record of this deed in the office of the county recorder of Alameda County. Under our conclusion, it

[3] The defendant, in attempting to introduce the record of this deed from the corporation to Lukens, introduced no proof of the authority of the officer executing the instrument to execute the same, but relied upon the presumption raised by a seal of the corporation to furnish the prima facie proof necessary to its admission in evidence. The record of the deed contained no statement or other evidence by the recorder that a corporate seal was affixed to the original deed, but the deed itself, as recorded, recited that the grantor “has hereunto set its name and caused its common seal to he affixed by its president, thereunto duly authorized by resolution of its board of directors.” We think this recital is not evidence of the existence of the fact which it recites. (Gashwiler v. Willis, 33 Cal. 11 , 17, [ 91 Am. Dec. 607 ].)

Section 4137 of the Political Code declares: “When any instrument, ... is deposited . . . for record, the recorder must indorse upon the same the time when it was received, . . . and must record the same without delay, together with the acknowledgments, proofs and certificates, written upon or annexed to the same ...” It was the duty of the recorder, therefore, to note on the copy made by him the certificates and proofs appearing on the face of the instrument. If there had been a seal upon the original deed, the record of which was sought to be introduced by the defendant, it would have been the duty of the recorder to have made some appropriate record of that fact. > We will presume that official duty has been regularly done, and, in the absence of a seal upon the copy, we must presume that the original deed bore no seal. [4] If the original deed had been produced without the corporate- seal, it would have been inadmissible without a showing of the authority of the officers executing the same to execute it. (Barney v. Pforr, 117 Cal. 56 , [ 48 Pac. 987 ]; Miners’ Ditch Co. v. Zellerbach, 37 Cal. 545 , at pages 596, 597, and 598, [ 99 Am. Dec. 300 ].) Appellant is in no better position by reason of having offered the record instead of the original. The defendant made no showing whatever of due and regu

The case of Smith v. Dall, 13 Cal. 510 , relied upon by appellant, merely presented the question of whether the defendant who claimed under a deed subsequent to the one under which plaintiff deraigned title had notice of the first conveyance which had been imperfectly recorded. This case was decided in 1859, before the distinction between sealed and unsealed instruments had been abolished in this state, and at that time it was necessary for a deed to be under seal. It was held in that case, however, that so far as the record of the deed was concerned, a recital in the notarial certificate that the deed contained a seal was sufficient to give the notice contemplated by the statute to a subsequent purchaser. There was no question involved in that case of the validity of the deed to pass title. In fact, it is stated by the court that the deed was actually under seal and had been duly acknowledged, and the court stated that the question was: “Does the fact that the recorder failed to make some mark upon his books to indicate that there was a seal to the conveyance vitiate the record?”

In the present case, the record was not offered to prove notice, but as an actual step in the chain of title claimed by the defendant.

The judgment is affirmed.

Brittain, J., and Haven, J., concurred.