HesteR, J.
— This is a suit brought for a tract of land. Both parties claim title» thereto, under Gomez, the ancestor of the plaintiffs, and admit the title to have been in the ancestor.
The proof of the plaintiffs establishes the death of the ancestor to •have occurred in 1851; that they are his heirs at law. Therefore, unless the defendants have established that the ancestor, at his death, was divested of the property in dispute, the same, by the law of descent in this state, descended to the plaintiffs; and if so, they are entitled to recover in this action.
The defendants claim under a judicial sale, had in a proceeding of insolvency instituted by the ancestor of the plaintiffs, in his lifetime, under the Mexican law. To establish their claim they offered the record of the proceedings in insolvency, of said Gomez, had before alcalde Colton, in the years 1847 and 1848. To this proof the plaintiffs objected, because this record came from the defendant, Stokes, who was not its proper custodian; that the law required it to be kept by the clerk of the county in which said proceedings were had, and not having been so kept, it is not entitled to credit, and cited statutes 1850, 80, § 80 ; 1 Starlde on Ev., 202, 252, 256, 189,192.
To determine as to the admissibility of this evidence, it is necessary to determine the character of the court in which these proceedings Avere had, the time Avhen, and their nature. The proof establishes the following facts : that they Avere had in the years 1847 and 1848, upon the application of Gomez, before one Colton, Avho was then the alcalde of Monterey, and possessed the power of discharging the duties of a court of first instance, and that Gamer was his secretary, who departed this life in 1849; that Little AA'as the administrator of Garner, [211]*211among whose papers he found, in the year 1850, a bundle of papers labelled “ papers of Gomez’s rancho that this bundle he handed to Stokes, the same not having been filed with the clerk of the county of Monterey since its organization; that no proceedings of the said Gomez, in relation to his insolvency, were to be found in the clerk’s office after the most diligent search, except the deed under which Stokes claims the land in controversy, and a mortgage made by him. The defendants further proved the execution of the various papers relating to the said proceedings of Gomez; his statements, admitting the existence of such proceedings; the sale of the property to Stokes for $3000; Stokes’ payment of the purchase money, and the expenses of the court of said Golton in said proceedings ; the surrender of the land to Stokes after his purchase, by Gomez; the acquiescence of Gomez therein until his death, and the acquiescence of the creditors.
The reason of the law, that papers and records should come from the proper repository, is, to give them credit, and to prevent imposition and fraud.
It is well known that public documents, papers, and records, which, by the usages of civilized nations, have assigned them a proper receptacle and custodian, were not so kept in California before the revolution and the institution of our government here; that the rule referred to was not adhered to by the keepers of such records and papers as those now before the court. And now to decide that such records should have no credit, and be rejected, because not found in the proper place fixed by law for their keeping, would be upsetting many of the landed titles in this country. And when there has been no attempt made by plaintiffs to show that there were different and other proceedings than those the papers purport to represent, or to show fraud or imposition, or that no such proceedings were had, the enforcement of the rigid rule contended for would not guard against fraud, but would encourage and protect fraud. Courts must, under such circumstances, so modify the rule by making exceptions, as to protect rights and administer justice. The ruling, therefore, upou the trial of this cause, in receiving the record evidence, is adhered to, and the evidence retained. The question then presented is, whether, from the testimony in this cause, the plaintiffs have title to the land sued for.
[212]*212It appears from the evidence that in February, 1847, an attachment issued against the lands of Gomez, in favor of one of his creditors, and final proceedings therein were postponed for eight months; that subsequently other attachments issued, some against his personal property, others against his lands, and that final proceedings and sale were tp be had therein about the first of November, 1847; that on the 3d day of Nov., 1847, he, Gomez, petitioned the alcalde for a postponement of final action therein. In the absence Of testimony it must be presumed that the petition was not granted; that on the 4th day of Nov., 1847, Gomez applied for the benefit of the insolvent law, and for that purpose made a surrender of his property to his creditors; that-the alcalde entertained jurisdiction, and decreed notice for a meeting of those creditors in the port of Monterey, on the 26th day of Nov., 1847 ; and as to the other creditors, that notice be given for their meeting forty days thereafter. That on the 26th day of Nov., the creditors in Monterey met, and Gomez delivered his personal property to them under said proceeding, which they accepted; and they agreed that Bias should take charge of it, and account to the creditors for its market value, and that the proceeds should be divided amongst them, and' that the house be rented for one year. The creditors at this meeting appointed Walter and Garner their trustees and representatives, there being no objections made by other creditors; that on the 14th day of Feb., 1848, Gomez obligated himself to deliver to said trustees the muniments of his title to his rancho, which he afterwards fulfilled; that on the 5th da^ of April, 1848, the rancho was advertised for sale ; that on the 5th June-, 1848, the creditors met and authorised the trustees to sell the rancho to Stokes; that on the 7th day of the same month, a deed was made by the trustees to Stokes, for the rancho, in the name of the creditors; that on the 8th day of June a mortgage was executed by Stokes to the trustees, pursuant to the contract of sale, to secure the payment of the purchase money; that afterwards the purchase money was paid by Stokes, and the debts of Gomez cancelled, and that the several steps taken by the creditors and their trustees in the said proceeding in insolvency, and said sale, were controlled and sanctioned by said alcalde.
[213]*213It is objected that these proceedings were not valid, because the alcalde had no jurisdiction thereof, on the ground that three creditors were not named in Gomez’s petition. Considering the looseness of judicial proceedings in California prior to our state government, much injustice will be done if objections to formal defects should obtain. When Gomez made his application there were at least four creditors before the alcalde, with their names and amount of claims specified ; in the subsequent proceedings, at least six creditors appeared. Gomez gave the court jurisdiction of his person by his application; the appearance of the.creditors gave the court jurisdiction of them; and as to the subject matter of
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HesteR, J.
— This is a suit brought for a tract of land. Both parties claim title» thereto, under Gomez, the ancestor of the plaintiffs, and admit the title to have been in the ancestor.
The proof of the plaintiffs establishes the death of the ancestor to •have occurred in 1851; that they are his heirs at law. Therefore, unless the defendants have established that the ancestor, at his death, was divested of the property in dispute, the same, by the law of descent in this state, descended to the plaintiffs; and if so, they are entitled to recover in this action.
The defendants claim under a judicial sale, had in a proceeding of insolvency instituted by the ancestor of the plaintiffs, in his lifetime, under the Mexican law. To establish their claim they offered the record of the proceedings in insolvency, of said Gomez, had before alcalde Colton, in the years 1847 and 1848. To this proof the plaintiffs objected, because this record came from the defendant, Stokes, who was not its proper custodian; that the law required it to be kept by the clerk of the county in which said proceedings were had, and not having been so kept, it is not entitled to credit, and cited statutes 1850, 80, § 80 ; 1 Starlde on Ev., 202, 252, 256, 189,192.
To determine as to the admissibility of this evidence, it is necessary to determine the character of the court in which these proceedings Avere had, the time Avhen, and their nature. The proof establishes the following facts : that they Avere had in the years 1847 and 1848, upon the application of Gomez, before one Colton, Avho was then the alcalde of Monterey, and possessed the power of discharging the duties of a court of first instance, and that Gamer was his secretary, who departed this life in 1849; that Little AA'as the administrator of Garner, [211]*211among whose papers he found, in the year 1850, a bundle of papers labelled “ papers of Gomez’s rancho that this bundle he handed to Stokes, the same not having been filed with the clerk of the county of Monterey since its organization; that no proceedings of the said Gomez, in relation to his insolvency, were to be found in the clerk’s office after the most diligent search, except the deed under which Stokes claims the land in controversy, and a mortgage made by him. The defendants further proved the execution of the various papers relating to the said proceedings of Gomez; his statements, admitting the existence of such proceedings; the sale of the property to Stokes for $3000; Stokes’ payment of the purchase money, and the expenses of the court of said Golton in said proceedings ; the surrender of the land to Stokes after his purchase, by Gomez; the acquiescence of Gomez therein until his death, and the acquiescence of the creditors.
The reason of the law, that papers and records should come from the proper repository, is, to give them credit, and to prevent imposition and fraud.
It is well known that public documents, papers, and records, which, by the usages of civilized nations, have assigned them a proper receptacle and custodian, were not so kept in California before the revolution and the institution of our government here; that the rule referred to was not adhered to by the keepers of such records and papers as those now before the court. And now to decide that such records should have no credit, and be rejected, because not found in the proper place fixed by law for their keeping, would be upsetting many of the landed titles in this country. And when there has been no attempt made by plaintiffs to show that there were different and other proceedings than those the papers purport to represent, or to show fraud or imposition, or that no such proceedings were had, the enforcement of the rigid rule contended for would not guard against fraud, but would encourage and protect fraud. Courts must, under such circumstances, so modify the rule by making exceptions, as to protect rights and administer justice. The ruling, therefore, upou the trial of this cause, in receiving the record evidence, is adhered to, and the evidence retained. The question then presented is, whether, from the testimony in this cause, the plaintiffs have title to the land sued for.
[212]*212It appears from the evidence that in February, 1847, an attachment issued against the lands of Gomez, in favor of one of his creditors, and final proceedings therein were postponed for eight months; that subsequently other attachments issued, some against his personal property, others against his lands, and that final proceedings and sale were tp be had therein about the first of November, 1847; that on the 3d day of Nov., 1847, he, Gomez, petitioned the alcalde for a postponement of final action therein. In the absence Of testimony it must be presumed that the petition was not granted; that on the 4th day of Nov., 1847, Gomez applied for the benefit of the insolvent law, and for that purpose made a surrender of his property to his creditors; that-the alcalde entertained jurisdiction, and decreed notice for a meeting of those creditors in the port of Monterey, on the 26th day of Nov., 1847 ; and as to the other creditors, that notice be given for their meeting forty days thereafter. That on the 26th day of Nov., the creditors in Monterey met, and Gomez delivered his personal property to them under said proceeding, which they accepted; and they agreed that Bias should take charge of it, and account to the creditors for its market value, and that the proceeds should be divided amongst them, and' that the house be rented for one year. The creditors at this meeting appointed Walter and Garner their trustees and representatives, there being no objections made by other creditors; that on the 14th day of Feb., 1848, Gomez obligated himself to deliver to said trustees the muniments of his title to his rancho, which he afterwards fulfilled; that on the 5th da^ of April, 1848, the rancho was advertised for sale ; that on the 5th June-, 1848, the creditors met and authorised the trustees to sell the rancho to Stokes; that on the 7th day of the same month, a deed was made by the trustees to Stokes, for the rancho, in the name of the creditors; that on the 8th day of June a mortgage was executed by Stokes to the trustees, pursuant to the contract of sale, to secure the payment of the purchase money; that afterwards the purchase money was paid by Stokes, and the debts of Gomez cancelled, and that the several steps taken by the creditors and their trustees in the said proceeding in insolvency, and said sale, were controlled and sanctioned by said alcalde.
[213]*213It is objected that these proceedings were not valid, because the alcalde had no jurisdiction thereof, on the ground that three creditors were not named in Gomez’s petition. Considering the looseness of judicial proceedings in California prior to our state government, much injustice will be done if objections to formal defects should obtain. When Gomez made his application there were at least four creditors before the alcalde, with their names and amount of claims specified ; in the subsequent proceedings, at least six creditors appeared. Gomez gave the court jurisdiction of his person by his application; the appearance of the.creditors gave the court jurisdiction of them; and as to the subject matter of Gomez’s application, none can doubt the court’s jurisdiction. Therefore this objection does not obtain.
It is also urged by the plaintiffs that the trustees could not sell the land at private sale. The facts proven authorize the inference that Gomez, the creditors, and the alcalde, were all present and consenting to the sale. They were the parties interested, and had a right to waive any particular mode prescribed for such sales, and adopt some other mode. This was done, the creditors, who were more interested than any other person, expressly authorising it. Therefore this objection does not obtain.
It is further objected that the creditors had no power to sell the rancho except by an order of court. It seems, by the Spanish authorities, that the creditors had the whole control over the property in such .cases, whether movable or immovable, of the debtor, subject, however, to a superintending control of the court — the same that administrators had at common law, over the personalty of the deceased. If this view be correct, the creditors had power to sell the rancho. But giving the proceedings in said case of insolvency a fair and rational construction, considering the time when, and the court in which, they were had, and the looseness which prevailed in such courts, I think from the beginning to the end of them they partake of a judicial nature. The alcalde was clothed with powers in two capacities — one as notary public, the other as judge. And when proceedings were had before him which ought to be of a judicial character, and nothing appearing to the contrary, the court ought so to consider them. The petition made to him, [214]*214his decree for a meeting of, and notice to, the creditors, the sale, the the making of the deed and mortgage, were under his superintending control, and were his judicial proceedings so far as the papers and testimony show his action — fully establishing the fact of his consent to the sale — -a formal decree entered by him could do no more.
But this objection comes with poor grace from the heirs of Gomez, the person who produced, by his action, this state of things. He set this judicial ball in motion by his application — he surrendered his property to his creditors, and after the s.ale he delivered possession to Stokes — he consented to all the proceedings — produced by this means the cancellation of his debts — and acquiesced in this state of things until his death. Now, when these proceedings have had the effect of cancelling his debts, which have been surrendered up by his creditors, should they be declared invalid ? This would make stringent rules, applicable to other states of society and regular governments, the instruments of fraud, and destructive to the best interest of the people, when applied to loose governments and a crude state of judicial proceedings.
Furthermore, none of the creditors have objected. It is a rule of law that whatever, by reasonable diligence, a person might know, he is presumed to know. These proceedings were all of such a character that Gomez and the creditors, if they did not know in minutice, they might have known by proper diligence; the law, therefore, presumes their knowledge. If they had any objections they might have made them. Their silence proves their assent; and Gomez, by delivering possession of the rancho, and making no objections to the deed, is now estopped from objecting to the validity of said proceedings; and so are his heirs and the creditors. The objections, therefore to tho validity of said proceedings are overruled. Stokes, therefore, by his purchase, acquired all the title that Gomez then had to said rancho, and that no right thereto descended to the plaintiffs, consequently they are not entitled to recover.
Judgment is therefore ordered for the defendants.