Sawyer, C. J., delivered the opinion of the Court:
The complaint alleges that the plaintiff “is the owner, and entitled to the possession of the land ” described; that “ defendant is in possession of said lot of land, without any [218]*218right or title thereto, and against the will and without the consent of said plaintiffthat said defendant “wrongfully withholds the possession of said lot of land from said plaintiff, ” and prays judgment for the possession, etc. The complaint is sufficient. The allegation that the plaintiff “is the owner” of the land, is, in substance, an allegation of seizin in fee, in “ordinary ” instead of technical language, as is permitted by Section 39 of the Practice Act. Payne v. Treadwell (16 Cal. 242, 244), determines the point.
After proving that Book “K” of Deeds, now in the Recorder’s office, was kept in the office of Alcalde Geary; that, after the organization of the State Government it was transferred from said office to the office of the County Clerk, and thence to the office of the County Recorder, where it still remains, the plaintiff offered a certified copy from page 241 of said Book ‘ ‘ K, ” of what purported to be a petition to, and grant of, a lot by Alcalde Leavenworth, to Joseph W. Osborn, dated June 30, 1849, of one hundred varas square, bounded on the north by Washington street, east by Jones street, south by Clay street, and west by unsurveyed lands, which purports to have been recorded March 21, 1850; said lot including locus in quo. It was, also, proved to the satisfaction of the Court that plaintiff had not the custody or control of, and was unable to produce the original. Defendant objected to the introduction of this evidence on the ground that there was no description of the land sufficient to identify it; and because there was no proof of the execution of such grants, nor of the loss of the original, or that it was genuine. The objection was overruled, the certified copy admitted, and defendant excepted. This ruling is claimed to be erroneous.
The description is not defective on its face. The land is a hundred-vara lot, bounded on three' sides by well known streets upon the plat of a city laid out, surveyed and platted, and on the other by the unsurveyed lands. It was only necessary to find the unsurveyed land, and apply the description to the lot, to find it. It certainly does not appear on the face of the deed that the description would not fit a lot one hundred varas square.
[219]*219The other, however, is the main objection, and this point is settled against the appellant by the case of Touchard v. Keyes (21 Cal. 203.) Book “K” of Deeds was shown to be a “booh of records, kept” in the County Recorder’s office, within the meaning of the several provisions of the statutes cited in the opinion in that case (p. 310.) And the twenty-first section of the Act of 1851, concerning County Recorders, provides that “copies of all papers duly filed in the Recorder’s office, and transcripts from the boolcs of records hept therein, certified by the Recorder to be full, true and correct copies, or transcripts, shall be received in all Courts, and in all proceedings, with the like effect as the original instruments, papers and notices recorded or filed could be if produced.” (Statutes 1851, 204.) The Alcalde’s record being “books of records kept therein," it was held that: “This applies as much to copies from the Alcalde’s records, which, by the Act of April 13, 1850, are to be kept by the County Recorder as ‘pari of his records, ‘ as it does to records made under the Act of 1851.” (21 Cal. 210.) And further, that “the Legislature, therefore, placed the Alcalde’s 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 inability of the party to produce, the original. ” (Ib. 211.) It is true that in that case the execution of a conveyance was proved, but it does not appear from proofs, other than the record, that the conveyance proved to be executed was the identical one of which the record purported to be a copy. If this were proved, no force could be given to the copy as a record; for, after showing the loss of the original, and proving its execution, and that the record is a copy of the original, it would be admissible as secondary evidence of the contents of the original, independent of its being a record. But it was introduced not as a proved copy, but as a record, to prove that it was a copy of the original, as well as the contents. But the real question determined, was, that the records of the Alcaldes, transferred, under the statutes, to the Recorder’s office, to be kept therein as parts [220]*220of the public records of the office, stand upon precisely the same footing, and are of equal dignity and value as instruments of evidence, as records of the Recorder, regularly made by him in pursuance of the provisions of the statutes concerning that office and its records—that certified copies from such Alcalde’s records are admissible in evidence, under the same circumstances and upon the same proofs, as certified copies of other records regularly made in the office, under the statutes. Such was the point decided by the majority of the Court, and it was so understood by the dissenting Justiceand the objection taken by the latter was mainly based upon the ground that, under the decision, copies of instruments recorded in such records would be admissible in evidence, without other proof of their authenticity and genuineness, in the same manner, under the same circumstances, and with the same effect, as transcripts of deeds, duly acknowledged and recorded under the statute, and that this would be a dangerous rule of evidence. Says Mr. Justice Horton: “ By the interpretation of this section claimed by appellants, and now given to it by a majority of the Court, a copy of any instrument found in any book transferred from the old Alcalde’s office to the Recorder’s office, may be read in evidence without any proof whatever that it .was ever executed. It is true that the instrument, a copy of which was offered in this case, has a certificate of acknowledgment before an Alcalde. But this section does not require any such evidence. The simple fact that the instrument is found on the Alcalde’s records, is all that is necessary, according to this view, to authorize the copy to be read. If it is now decided that this copy is evidence, there will be no ground upon which any copy from these books can hereafter be excluded. There being no laws in force upon the subject at the time these records were made, we cannot assume that any acknowledgment or proof was requisite to enable deeds to be copied into their books. ** * If any attempt should be made hereafter to restrict the operation of this section, so as only to allow copies to be made of conveyances which should have been acknowledged or proved, it would be impracticable to do so, because this [221]*221species of evidence is entirely the creature of statute, and there ivas no statute then in force authorizing it.” (Ib. 213.) There can be no doubt as to the point decided in that case. The reasons which are supposed to have operated upon the minds of the Legislature in adopting the provisions respecting the Alcalde’s records, are stated in the opinion of the Court in that case. We have, also, had occasion to discuss cognate questions in the recent case of Anderson v. Fish (36 Cal.
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Sawyer, C. J., delivered the opinion of the Court:
The complaint alleges that the plaintiff “is the owner, and entitled to the possession of the land ” described; that “ defendant is in possession of said lot of land, without any [218]*218right or title thereto, and against the will and without the consent of said plaintiffthat said defendant “wrongfully withholds the possession of said lot of land from said plaintiff, ” and prays judgment for the possession, etc. The complaint is sufficient. The allegation that the plaintiff “is the owner” of the land, is, in substance, an allegation of seizin in fee, in “ordinary ” instead of technical language, as is permitted by Section 39 of the Practice Act. Payne v. Treadwell (16 Cal. 242, 244), determines the point.
After proving that Book “K” of Deeds, now in the Recorder’s office, was kept in the office of Alcalde Geary; that, after the organization of the State Government it was transferred from said office to the office of the County Clerk, and thence to the office of the County Recorder, where it still remains, the plaintiff offered a certified copy from page 241 of said Book ‘ ‘ K, ” of what purported to be a petition to, and grant of, a lot by Alcalde Leavenworth, to Joseph W. Osborn, dated June 30, 1849, of one hundred varas square, bounded on the north by Washington street, east by Jones street, south by Clay street, and west by unsurveyed lands, which purports to have been recorded March 21, 1850; said lot including locus in quo. It was, also, proved to the satisfaction of the Court that plaintiff had not the custody or control of, and was unable to produce the original. Defendant objected to the introduction of this evidence on the ground that there was no description of the land sufficient to identify it; and because there was no proof of the execution of such grants, nor of the loss of the original, or that it was genuine. The objection was overruled, the certified copy admitted, and defendant excepted. This ruling is claimed to be erroneous.
The description is not defective on its face. The land is a hundred-vara lot, bounded on three' sides by well known streets upon the plat of a city laid out, surveyed and platted, and on the other by the unsurveyed lands. It was only necessary to find the unsurveyed land, and apply the description to the lot, to find it. It certainly does not appear on the face of the deed that the description would not fit a lot one hundred varas square.
[219]*219The other, however, is the main objection, and this point is settled against the appellant by the case of Touchard v. Keyes (21 Cal. 203.) Book “K” of Deeds was shown to be a “booh of records, kept” in the County Recorder’s office, within the meaning of the several provisions of the statutes cited in the opinion in that case (p. 310.) And the twenty-first section of the Act of 1851, concerning County Recorders, provides that “copies of all papers duly filed in the Recorder’s office, and transcripts from the boolcs of records hept therein, certified by the Recorder to be full, true and correct copies, or transcripts, shall be received in all Courts, and in all proceedings, with the like effect as the original instruments, papers and notices recorded or filed could be if produced.” (Statutes 1851, 204.) The Alcalde’s record being “books of records kept therein," it was held that: “This applies as much to copies from the Alcalde’s records, which, by the Act of April 13, 1850, are to be kept by the County Recorder as ‘pari of his records, ‘ as it does to records made under the Act of 1851.” (21 Cal. 210.) And further, that “the Legislature, therefore, placed the Alcalde’s 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 inability of the party to produce, the original. ” (Ib. 211.) It is true that in that case the execution of a conveyance was proved, but it does not appear from proofs, other than the record, that the conveyance proved to be executed was the identical one of which the record purported to be a copy. If this were proved, no force could be given to the copy as a record; for, after showing the loss of the original, and proving its execution, and that the record is a copy of the original, it would be admissible as secondary evidence of the contents of the original, independent of its being a record. But it was introduced not as a proved copy, but as a record, to prove that it was a copy of the original, as well as the contents. But the real question determined, was, that the records of the Alcaldes, transferred, under the statutes, to the Recorder’s office, to be kept therein as parts [220]*220of the public records of the office, stand upon precisely the same footing, and are of equal dignity and value as instruments of evidence, as records of the Recorder, regularly made by him in pursuance of the provisions of the statutes concerning that office and its records—that certified copies from such Alcalde’s records are admissible in evidence, under the same circumstances and upon the same proofs, as certified copies of other records regularly made in the office, under the statutes. Such was the point decided by the majority of the Court, and it was so understood by the dissenting Justiceand the objection taken by the latter was mainly based upon the ground that, under the decision, copies of instruments recorded in such records would be admissible in evidence, without other proof of their authenticity and genuineness, in the same manner, under the same circumstances, and with the same effect, as transcripts of deeds, duly acknowledged and recorded under the statute, and that this would be a dangerous rule of evidence. Says Mr. Justice Horton: “ By the interpretation of this section claimed by appellants, and now given to it by a majority of the Court, a copy of any instrument found in any book transferred from the old Alcalde’s office to the Recorder’s office, may be read in evidence without any proof whatever that it .was ever executed. It is true that the instrument, a copy of which was offered in this case, has a certificate of acknowledgment before an Alcalde. But this section does not require any such evidence. The simple fact that the instrument is found on the Alcalde’s records, is all that is necessary, according to this view, to authorize the copy to be read. If it is now decided that this copy is evidence, there will be no ground upon which any copy from these books can hereafter be excluded. There being no laws in force upon the subject at the time these records were made, we cannot assume that any acknowledgment or proof was requisite to enable deeds to be copied into their books. ** * If any attempt should be made hereafter to restrict the operation of this section, so as only to allow copies to be made of conveyances which should have been acknowledged or proved, it would be impracticable to do so, because this [221]*221species of evidence is entirely the creature of statute, and there ivas no statute then in force authorizing it.” (Ib. 213.) There can be no doubt as to the point decided in that case. The reasons which are supposed to have operated upon the minds of the Legislature in adopting the provisions respecting the Alcalde’s records, are stated in the opinion of the Court in that case. We have, also, had occasion to discuss cognate questions in the recent case of Anderson v. Fish (36 Cal. 625), in which much is said relevant to the policy and safety of the rule. In that case we held that, under the forty-first section of the Act concerning conveyances, “it was the intention of the Legislature to admit to record all deeds before then made in any mode sufficient to pass an estate in lands, whether they were proved or acknowledged or not.” We showed that since there were, anterior to that time, no laws as to the proof and acknowledgment of conveyances, it could not have been the intention of the Legislature to limit the record of deeds before that time made to deeds “ acknowledged or proved,” according to any laws in force at the time the deeds were made. But it is expressly provided that all conveyances authorized to be recorded at all under that section, “shall have the same force as evidence, and be recorded in the same manner, and with like effect, as conveyances executed and acknowledged in pursuance of this Act.” If it was lawful, under this section, to record conveyances executed before the passage of the Act, without having been first proved or acknowledged—and in Anderson v. Fisk we held that it was —then, when they were recorded under the provisions of said section, the record thereof became of the same dignity as the records of other deeds regularly recorded, for the statutes—especially said Sections 41 and 21 of the Acts before cited—make no distinction. There certainly could be no more danger in putting the official records of the Alcaldes, made in accordance with the then usage of the country, at a time when it could not be known that they would ever, under certain restrictions, be made by statute prima facie evidence of the genuineness of the instruments therein recorded, upon the same footing with the records of deeds subsequently regularly executed, acknowledged and [222]*222recorded in pursuance of the statutes, than the records of deeds before executed and, without being proved or acknowledged, copied into the records of the Recorders after the adoption of the statute in pursuance of the provisions of Section 41 of the Act concerning conveyances. The only difference between the two classes of conveyance would be the time when they were copied into the records, one being copied into the records of the Alcaldes before, and the other by the Recorders after, the passage of the statute. The instruments themselves would be alike. The argument in Anderson v. Fish, as to the danger of the rule adopted, is equally applicable to this case, and it is sufficient to refer to without repeating it here.
The Alcaldes’ records, therefore, being of equal dignity, and standing upon the same footing with those regularly made by the Recorders under the statutes of the State, it only becomes necessary to ascertain under what circumstances certified copies of the latter are admissible, and their force as evidence when admitted to ascertain when certified copies of the former are admissible, and their value as evidence. Certified copies of the records of deeds, regularly recorded under the statute, are admissible in evidence upon satisfactory proof of the loss or inability of the party to produce the original. In this case the plaintiff produced to the Court satisfactory proof of the inability of the plaintiff to produce the original. The certified copy from Book Iv was, therefore, properly admitted.
There is nothing in the point that the deed from O’Brien to Eliza S. Henderson does not contain the names of the parties. It does contain names of both grantor and grantee. The land was conveyed to the grantee, whatever her real name was, by the name of Eliza S. Henderson, and that was the name she was known and went by in San Francisco at the time—whether properly or not, does not matter. She was the party intended as the grantee. She says her name was Eliza Henderson at that time. At all events, she passed by that name, and the title passed to the grantee by that name. Eliza was her real Christian name, and that is the [223]*223one which, át common law, is alone recognized as the legal name.
Eliza Kinsey, the party to whom the conveyance had been made by the name of Eliza S. Henderson, was examined as a witness. On cross-examination, after stating that she had been married in 1848, in New Jersey, to Ebenezer Sooy, testified as follows: “Do not know whether he (Sooy) is dead or alive; I have not heard of or seen him for at least seventeen years; I did not continue to be his wife; he left this State for the Sandwich Islands about 1850; I have been married since to George W. Wilmot, about fourteen years ago; he was killed in a mining claim about four years after; since my second husband’s death I have married Kerst Kinsey, who is now my husband.”
We think we should not be justified in setting aside the finding by the District Court of the death of Sooy, the first husband of the witness, based upon this evidence. The Court was at liberty to find the death of Sooy upon this evidence, under the rule as stated in 2 Greenl. on Evidence, Sec. 278 f. and h. Winship v. Connor, (42 N. H. 344), is also in point, and is certainly a case no stronger than this for sustaining the finding. This case is also within the principle of Sec. 278, h. 2 Greenl. Ev. not requiring the most weighty and persuasive circumstances to justify the finding. The death of Sooy being found, it can make no difference in this case whether the property was common or the separate property of the wife, for if common property, after the death of the husband the title to one half at least was in the surviving wife, and this is sufficient to enable the grantee of that half, as tenant in common, to recover the whole premises as against a mere trespasser.
The burden of showing a five years’ adverse possession was on the defendant. The plaintiff having shown title, the possession is presumed to follow the title.
No title was derived to Jessie Kichardson under the tax sale. The tax was levied against her, and it was her duty to pay it. (McMinn v. Whelan, 27 Cal. 300; Kelsey v. Abbot, 13 Cal. 609; Moss v. Shear, 25 Cal. 38: Coppinger v. Rice, 33 Cal. 425.) Besides, the assessment was void, because there [224]*224was no valuation. (People v. San Francisco Savings Union, 31 Cal. 132.) And again, it is, at best, extremely doubtful whether the assessment is not also void for want of a description sufficiently certain to identify the land—the point of beginning not being stated. (Keene v. Cannovan, 21 Cal. 292.)
There was no error in denying a new trial on the ground of newly discovered evidence, on the very unsatisfactory affidavits presented as the basis of the motion on that ground.
Judgment and order denying a new trial affirmed.