Canfield v. Thompson

         Appellant does not favor us with any authority showing that a patent issued by the United States to pueblo land is void. The case of Grisar v. McDowell (6 Wall. 363), cited by counsel, does not bear even remotely on the question. The Act of March 3, 1851, section 14 (9 U.S. Statutes at Large, p. 634), provides expressly that where a town existed at the passage of the Act, the claim for lands embraced within the limits of the same should be made by the corporate authority of the town. Section 13 of the same Act provides that a patent shall issue to claimant upon his presenting to the General Land Office a certificate of confirmation and a plat or survey of the land, etc.

         We contend that under the provisions of the Code of Civil Procedure a certified copy of a deed, duly recorded, is primary evidence. Writings are of two kinds: (1) public; (2) private. (Code of Procedure, Sec. 1887.) Public writings are * * * (2) public records kept in this State of private writings. (Id. secs. 1888 and 1894.) It cannot be denied that a record of deeds kept in a County Recorder's office is a public record of private writings. A certified copy of a public record (both of public and private writings) is primary evidence of the original writing. (Code of Procedure, Sec. 1893.)

         JUDGES: McKinstry, J. Mr. Justice Rhodes did not express an opinion.

         OPINION

          McKINSTRY, Judge

         The objection to the patent to the city of Santa Barbara was not well taken. The Act of Congress, " to ascertain and settle private land claims," provides that a patent shall be issued to each " claimant" whose claim shall be finally confirmed.

         The bill of exceptions contains all the evidence bearing upon the exceptions taken, and there is contained in it no evidence tending to show that the alleged deed from the town to Gasper Orena was not in the possession or control of plaintiff. But a certified copy of a deed from the County Recorder's office is " primary" evidence. (Code Civil Procedure, secs. 1888, 1893, 1894.)          The other objections made to the deed cannot be passed on, because they are not sustained by the transcript. The instrument is not set forth in the bill of exceptions, nor is it referred to so that it is identified.

         Judgment affirmed.