Field, C. J. delivered the opinion of the Court
Baldwin, J. and Cope, J. concurring.
On the trial of this action, the plaintiffs gave in evidence a patent of the United States for a tract of land situated in the county of Tuba, [547]*547embracing the premises in controversy, issued to one William Johnson, bearing date of the third day of August, 1857. This patent recites that, on the eighth of March, 1852, the patentee, under the provisions of the Act of Congress of March 3d, 1851, presented his petition to the Board of Land Commissioners for the confirmation of his title to the tract known as “ Johnson’s Rancho,” containing five leagues, situated on Bear river, a tributary of the Sacramento; that his claim was founded on a Mexican grant made to Pablo Gutieras, “ in the summer of 1844, by Gaptain John A. Sutter, who, according to the records of the Board, derived his authority to grant from Governor Micheltorena, on the twenty-seventh day of December, 1844that in April, 1845, the tract was sold and conveyed by Sutter, in his capacity as Judge of the “Jurisdiction of the Sacramento,” to the petitioner; that in November, 1856, the case being on appeal before the United States District Court, and the Attorney General of the United States having given notice that the appeal would not be further prosecuted, and a stipulation of the District Attorney of the United States for the dismissal having been entered, a decree was rendered dismissing the appeal, and granting leave to the claimant to proceed under the decree of the Land Commission as a final decree; and that a plat and certificate of the survey of the tract thus confirmed, authenticated by the signature of the Surveyor General of the Public Lands in California, were presented to the Commissioner of the General Land Office. The plat and accompanying certificate are then set forth in full; the description of the premises commencing “ at an oak tree marked with a cross, (x)” and with certain designated letters and figures “ at the junction of Dry creek and Bear river,” and giving the courses and the distances between the several stations in chains and links, until the entire tract is closed; and are followed by the operative words of grant on the part of the United States to the patentee. The plat incorporated into the patent bears on its margin a memorandum that it was surveyed, under the orders of the United States Surveyor General, by A. W. Yon Schmidt, Deputy Surveyor, in November, 1856, and that the field notes from which it was made had been examined and approved by the United States Surveyor General for California, and were on file in his office. When the patent was offered in evidence, objection was taken to the survey it sets forth, as well as to itself—to the survey, on the ground that the Deputy Surveyor who made it was interested in the grant; and to the patent, on the ground that it rests upon a reputed Mexican grant [548]*548from one who was not authorized to issue such grant. Other grounds were stated, but they do not merit consideration. The above alone require notice. The objection based on them was overruled, and the patent admitted, and, in our opinion, very properly so. The patent itself was an answer to the objection to the survey. It was of no consequence whether the Deputy Surveyor was or was not interested in the grant at the time. It was not his action which gave character to the survey actually made; it was the approval by the Surveyor General of the United States for California, and by the proper department at Washington, which imparted to it validity, and placed it beyond the reach of attack in actions of ejectment. That approval was the judgment of the appropriate tribunal that the survey presented was in conformity with the final decree of confirmation. We are speaking now, it is to be observed, of a case arising previous to the legislation of Congress, vesting in the United States District Court a supervision over the action of the Surveyor General in the matter of surveys of lands claimed under confirmed Mexican grants. It may be true, also, according to the recent decision in the Fossatt case, (21 How. 445) that the jurisdiction of the United States District Court, previous to the legislation referred to, embraced all questions as to the location and boundaries of the lands confirmed, and could have been exercised to control the surveys of such lands until the issuance of the patent; but where no question was made as to the form and correctness of the survey, by proper parties, before the District Court, pending the proceedings for confirmation, the approval of the officers designated was final. Of that approval, and also of the regularity and validity of all the different proceedings required by the acts of Congress, from the filing of the petition of the claimant before the Board of Land Commissioners, to the issuance of the patent, the patent itself was, in this form of action, not only evidence, but conclusive evidence against the Government, and all parties claiming under the Government by title subsequent; much more so against parties claiming no higher title—which is the present case, so far as the record discloses—than that of mere possession.
The patent itself also furnishes an answer to the objection that it rested upon a reputed Mexican grant from one who was not authorized to issue the grant. It is only from the recitals of the patent that the character of the grant is known. From them it would appear that the grant belonged to that class which grew out of the document well known and designated through the valley of the Sacramento as “ Sut[549]*549ter’s general title.” This document bears date of the twenty-second day of December, 1844, and if the authority exercised were derived from it—the date given in the recitals—the twenty-seventh day of December is a mistake. If Sutter were clothed with any other power to issue any evidence of title, we are not informed of it, and it is not pretended by counsel that he was so clothed; but if such were the case, the fact would not affect our conclusions as to the objection taken. We shall, therefore, assume that reference was intended to that document. Besides this error of dates, there is evidently an omission in the recitals. They speak of the grant as made by Sutter in the summer of 1844, by authority derived from Micheltorena in December, 1844; that is, by authority subsequently acquired. The petition to the Governor for a grant was probably presented in the summer of 1844, and perhaps the words omitted had reference to this presentation. But it is not material in what way the inconsistency is explained. The fact that a grant was issued by Sutter, who assumed to act by authority derived from Micheltorena, appears, and this fact constitutes the point of the objection. A copy of the document mentioned will be found in the opinion of Mr. Justice Campbell, of the Supreme Court, in the case of The United States v. Nye, (21 How. 410) and is as follows:
“Manuel Micheltorena, Brigadier General of the Mexican army, Adjutant General of the Plana Mayor, Governor, Commandant General, and Inspector of the Department of the Californias.
“ The Supreme Departmental Government being unable, in consequence of its incessant occupations, to draw up, one by one, the respective title papers (títulos) for those citizens who have solicited lands, with informe in their favor, of Mr. Augustus Sutter, Captain and Judge, charged with the jurisdiction of New Helvetia and Sacramento.
“ In the name of the Mexican nation, I do, by these letters, confer upon them and their families the property of the lands designated in their respective applications (instancias) and maps, (disenos) upon all and each one who have solicited (the same) and obtained the favorable informe of the aforesaid Mr. Sutter, up to the day of this date, so that nobody shall have power to question their right of property—a copy hereof, which Mr. Sutter shall hereafter give them, serving them for a formal title, with which they will present themselves to this Government, in order to extend the same title in due form, and on stamped paper.
“And that it may remain firm and stable in all time, I give this [550]*550document, which shall be recognized and respected by all the authorities, civil and military, of the Mexican nation, in this and the other departments; authenticated with the military and Governmental seals, in Monterey, this twenty-second day of December, one thousand eight hundred and forty-four.
“ Micheltoeena.”
This document and the titles claimed under it were the subject of consideration by the Supreme Court of the United States, in the cases of The United States v. Nye, cited above, and of The United States v. Bassett (21 How. 412). In the first case, Mr. Justice Campbell, who delivered the opinion of the Court in both cases, states that the document had no reference to the colonization laws of Mexico; that it was issued by the Governor to enable Sutter to raise a military force for his assistance against insurgent chiefs, who had determined to expel him from the country; that it had no signification except as an appeal to Sutter, and persons under Sutter’s influence to come to his relief, and as a promise to them of a liberal distribution of land in case their assistance proved successful; that the issue of the war was fatal to Micheltorena, who was compelled to leave the country, and that whatever power the document conferred upon Sutter was then abrogated, if not previously. In the second case, Mr. Justice Campbell says: “ The promises of Micheltorena to Sutter, and through Sutter to the foreign volunteers, did not confer a title to any part of the public domain, nor perfect any incipient pretension into a vested interest. The parties looked to the contingency of a súppression of the revolt and the maintenance of the power of the Governor for the fulfillment of these promises. In this they were disappointed.” In the two cases before the 'Supreme Court, a certified copy of “ Sutter’s general title ” was not delivered to the claimants until after the defeat and abdication of Micheltorena, a circumstance referred to in the opinion. In the present case, it would appear that it had been previously delivered. Whether this fact, had it existed in those cases, would have affected their determination, it is immaterial to inquire. It probably would not have had any influence. Assuming then, that, as a matter of fact, the grant was issued by Sutter without authority, the answer to the objection taken on that ground is perfect; it has been decided otherwise by the tribunals established by the United States for the express purpose of ascertaining and determining the validity of grants claimed to have been issued to individuals by authority of the Mexican Government. This particular [551]*551grant those tribunals have passed upon and pronounced valid, entitling the claimant to a recognition and confirmation of his claim thereunder. The United States have their officers to take charge of their interests, and to conduct legal proceedings on their behalf, before the tribunals of the country. The highest officer for that purpose in the Union, with supervision over proceedings in each district, is the Attorney General; the highest officer for a particular district, subject to such general supervision, is the District Attorney. Both of these officers have consented, on behalf of the United States, that the appeal from the judgment of the Land Commission affirming the validity of the grant to Gutieras shall be dismissed, and upon such consent the United States District Court has acted and dismissed the appeal then pending, and ordered that the claimant have leave to proceed upon the decree of the Commission as a final decree, and these matters also appear by the recitals of the patent. The validity of the grant is therefore the law of that case. It can never be questioned again by the Government, or by individuals claiming under the Government, either collaterally in an action of ejectment, or directly in any other form of proceeding. It is a closed question for all time.
After the patent was admitted, two deeds of conveyance were offered in evidence. One from William Johnson to Henry E. Robinson, and the other from Robinson to Mary Jane Mott, one of the plaintiffs. The only proof of the execution of the deed from Johnson consisted of two certificates of acknowledgment, attached to the deed, made at the Hawaiian Islands on the tenth of March, 1857; one by Albert B. Bates, who describes himself in the body of his certificate, as “the principal Notary Public” of the Islands, and affixes to his signature a similar designation of his official character, with his notarial seal; and the other by George A. Lathrop, who describes himself in the body of his certificate, as “ the Vice Consul of the United States of America at Honolulu, Hawaiian Islands,” and affixes to his signature the designation of his official character as “ U. S. V. Consul,” and the consular seal. Upon the offer of the deed, objection was taken to the proof of its execution on two grounds : 1. That it was not shown that the persons before whom the acknowledgments purport to have been made were the officers they represent themselves to be : 2. That neither of the officers were authorized to take the acknowledgments. The objection was overruled, and the deed admitted; and the ruling of the Court in this respect constitutes one of the errors assigned for a reversal of [552]*552the judgment. We think the ruling correct, and both grounds upon which the objection was urged untenable.
The fourth section of the Act of April 16th, 1850, concerning conveyances, specifies the officers by whom the proof or acknowledgment of any conveyance affecting real estate may be taken, and provides that when the conveyance is acknowledged or proved without the United States, it may be taken by any “Judge or Clerk of any Court of any State, Kingdom, or Empire, having a seal, or by any Notary Public therein, or by any Minister, Commissioner, or Consul of the United States, appointed to reside therein.” The twenty-ninth section of the act provides that “ every conveyance or other instrument, conveying or affecting real estate, which shall be acknowledged or proved and certified, as hereinafter prescribed, may, together with the certificate of acknowledgment or proof, be read in evidence without further proof.” And the thirty-first section declares that “ neither the certificate of the acknowledgment, nor of the proof of any such conveyance or instrument, nor the record, nor the transcript of the record of such • conveyance or instrument shall be conclusive, but the same may be rebutted.” The word “ hereafter,” in the twenty-ninth section, is evidently a misprint, or a mistake in the enrollment of the act, for “herein,” as the provisions to which it refers precede the section.
It is thus clear, that if the persons designated in the certificates were in fact the officers they represent themselves to be, they were authorized to take the acknowledgments and make the certificates in question, and the certificates were sufficient prima facie evidence of the execution of the deed to entitle it to be read in evidence. The general designation in the statute of any Notary Public or any Consul of the United States, is sufficiently comprehensive to embrace Notaries and Consuls of every grade. It matters not whether the person exercising notarial or consular functions was principal or inferior Notary, or Consul General or Vice Consul. And the certificates were prima facie evidence of the official character of the persons by whom they were given. Were this otherwise, the utility of the statute would be in a great degree impaired. It would be quite as easy, in the majority of instances, to make the ordinary proof of the execution of a conveyance or other instrument, as to establish the official character of the officers. Statutes similar to our own, as to the proof and acknowledgments of deeds and other instruments executed without the jurisdiction of the United States, exist in several of the States, and the certificates [553]*553of the proof and acknowledgments are generally regarded as affording prima facie evidence of both the character of the officers giving them and the genuineness of their signatures. The statute of New York provides that every acknowledgment or proof of a deed or mortgage made or taken before any Consul of the United States, resident in any foreign port or country, certified by him, shall be as valid and effectual as if taken before one of the Justices of the Supreme Court of that State. (1 Revised Statutes, 747.) And in St. John v. Croel, (5 Hill, 573) two powers of attorney, purporting to have been executed by the plaintiffs—one before the United States Consul at Vienna, and the other before the United States Consul at London, and the certificates of acknowledgment of which were in the usual form, and authenticated by what purported to be the consular seal of those officers—were held sufficiently proved by the certificates alone, without any evidence aliunde of the signatures or seals of the officers.
In Truman v. Cameron, (24 Wend. 87) which was.^an action of ejectment 'tried in New York, a deed of the premises in controversy was produced, purporting to have been executed by the grantors in the State of Connecticitt, and having a certificate of acknowledgment purporting to have been given by “ David Daggett, a Judge of the Superior Court of Connecticut.” To its introduction objection was taken on various grounds, and among others on the ground that “ there was no evidence of the official character or of the signature of the officer whose name purported to be subscribed to it, or that the acknowledgments were taken within the jurisdiction of the Superior Court of Connecticut” The Circuit Judge ruled that the certificate was per se evidence of the official character and signature of the officer, and admitted the deed, and his ruling in this respect was affirmed on appeal by the Supreme Court. The principles expressed in the opinion of the Court are as applicable to the questions under consideration in the case at bar, as if the acknowledgments had been taken in a foreign country, and before a Consul of the United States. “The certificates of acknowledgment,” says the Court, “ were, we think, properly received in evidence. The objections to them, if allowed, would destroy almost entirely the utility of the statutes, which declare a probate or certificate of acknowledgment, indorsed by certain officers upon a deed, to be prima fade evidence of its execution. If their official character, their signatures, and that they acted within their territorial jurisdiction, must be shown by extrinsic evidence, the party may as well—and in general, [554]*554perhaps, with more convenience to himself—procure the common law proof. The practice is to take a certificate which appears on its face to be in conformity with the statutes, as proof of its own genuineness. It need only be produced. There is no need of extrinsic proof, such as showing by whom it was made, any more than of a Notary’s certificate when received under the commercial or civil law; (Chitty on Bills, Am. ed. 1839, 642, a; 2 Dom. tit. 1, sec. 1, pl. 29) or a Clerk’s certified rule of the Court in which the cause is pending. (Cowen & Hill’s, 1 Phil. Ev. 388.) Accordingly, where the certificate describes the proper officer, acting in the proper place, it is taken as proof both of his character and local jurisdiction. (Rhoades, lessee, v. Selin, 4 Wash. C. C. R. 718; Willinks, lessee, v. Miles, 1 Pet. C. C. R. 429; Morris v. Wadsworth, 17 Wend. 103, 112, 113.) He is like an officer authorized to take testimony, de lene esse, under various statutes. Vide Ruggles v. Bucknor, 1 Paine’s C. C. R. 358, 362. Thompson, J., there said: “Prima facie the officer is to be presumed, defacto and dejure, such as he is described to be. Indeed, the certificate stands much on the same ground as the return to a special commission for taking testimony. There it would be deemed a singular objection, that the Commissioners must be identified, and shown to have proceeded regularly, by evidence collateral to the return.”
On the argument of this case, the defendants interposed a further objection to the deed: that there was no proof to establish the identity of William Johnson of the deed with William Johnson of the patent. In the patent the residence of Johnson is not given;—he is only referred to as claimant—as the person filing the petition before the Land Commission for confirmation of his claim under the grant to Pablo Gutieras. William Johnson of the deed describes himself as “of the island of Hawaii, Sandwich Islands;” but this is not all, as counsel seem to consider, on the face of the deed, which tends to show his identity with the patentee. After designating the property, in which the interest of the grantor is conveyed, as the tract situated in the county of Yuba, and known as “Johnson’s Ranch,” and giving its boundaries, the deed proceeds to state that the ranch was originally granted to Pablo Gutieras by the Mexican Government, and has since been confirmed to the party of the first part by the Board of Commissioners to ascertain and settle private land claims in California. This is sufficient prima facie evidence of the identity of Johnson of the deed with Johnson of the patent, to allow the deed to be used in evi[555]*555dence. Before proof can be exacted of such identity, beside that furnished by the identity of names, and by reference to the source of title in the deed itself, some circumstances must be shown calculated to create doubts of such identity beyond the mere fact of a change of residence between the receipt of one conveyance and the execution of the other. In the present case, the original deed was produced in Court; the case was tried in Yuba county, where Johnson formerly lived for years, and where his signature is probably known by hundreds ; and had there been anything suspicious in relation to the signature, its genuineness or forgery could have been easily established. But there is another and conclusive answer to the objection, as urged in this Court. It was not taken before the District Court. To entitle objections to consideration here, they must be presented to the Court below in the first instance; at least, if they are of a character which might have been there obviated by the production of other evidence, or the release of the interest of witnesses, or an amendment to the pleadings, or in any other way. But where they could not, under any circumstances—which is rarely the case-—be obviated, they can be taken here. Thus, objections to the substantive cause of action, not to its technical form of statement, and to the jurisdiction of the Court, can be presented here for the first time—or may be considered by the Court, whether its attention be directed to them or otherwise. The objection now urged is one which might have been easily obviated in the Court below by proof of the signature to the deed, had it been there taken, and been founded upon circumstances requiring it to be noticed. (Jackson v. King, 5 Cow. 237.)
The deed from Johnson to Robinson, and from the latter to Mary Jane Mott, having been admitted, the plaintiffs called to the stand, as a witness, Yon Schmidt, the Deputy Surveyor already mentioned, for the purpose of proving that the premises in controversy were embraced within the calls of the patent, and were in the occupation of the defendant ; and on examination upon- his voir dire, the witness testified that he was a married man, and that his wife was the daughter of the plaintiffs, and that he had purchased land covered by the grant, in his own name, about two years previously, after the patent had been issued. The defendant then produced to the Court a power of attorney to Yon Schmidt, executed by John W. Patterson and Charlotte S. Patterson, his wife, of New York, and two conveyances, purporting to be executed under the power, to Mary Jane Mott; one from Patterson and the other [556]*556from his wife. The power in terms authorizes the attorney to take possession of any real estate in the county of Yuba, in California, which the parties executing the same were entitled to or interested in, either severally or jointly, or in common with any other person, and to grant, bargain and sell the same, or any proportion thereof, for such sum or price, and on such terms as to him might seem meet, and to execute and deliver good and sufficient deeds of the same. The conveyance from Patterson purports to be executed in consideration of the natural regard and affection which he has for his sister-in-law, the said Mary Jane, and is in trust for the benefit of her children. The conveyance from Charlotte purports to be in consideration of one dollar, and the love and affection which she has for the said Mary Jane and her children. Upon the testimony given upon his voir dire, and the conveyances thus produced, the defendant objected to the witness, on the ground that he was himself interested in the grant as part owner, and on the ground that his wife was interested, and, as her husband, he was in consequence disqualified. The Court overruled the objections and admitted the witness, and the ruling in this respect we affirm.
It does not appear that the witness was in any respect connected with the premises in controversy. We speak now of his relation to the property, independent of his position as husband of the daughter of the plaintiffs. His ownership in other parcels covered by the grant, upon the confirmation of which the patent issued, did not disqualify him from testifying in the action. He could not, from that circumstance alone, gain or lose by the direct legal operation and effect of the judgment, nor could the judgment be legal evidence for or against him in any other action; and this is the test prescribed in the statute, by which the interest of a witness is to be determined. (Prac. Act, sec. 393, as amended in 1854.)
The deeds purporting to be executed by the witness, under the alleged power, were upon their face mere nullities. A married woman cannot invest another with a power to sell any interest which, she may possess in real estate, in the absence of any statute to that effect, and there is no such statute in this State. To the efficacy of a conveyance by a married woman, it is essential that she join with her husband in its execution, and state, on a private examination at the time, separate and apart from him, and without his hearing, that she executed the same freely, without fear of him or compulsion, or under influence from him, and that she does not wish to retract its execution. This private examin[557]*557ation—this determination of the will as to the retraction of the execution—are not matters which can be delegated to another. Besides, the power only authorizes a sale, that is, a transfer for a valuable consideration, which was evidently intended to be a moneyed consideration. It does not authorize a conveyance from motives of love and affection. The conveyances, therefore, carry on their face the evidence of their own nullity. (Dupont v. Wertheman, 10 Cal. 355.) Again, it does not appear that Patterson or wife ever possessed or claimed any interest in any of the lands covered by the grant to Gutieras, or the patent to Johnson, or had any such land in contemplation when the power was executed. The title by which the plaintiffs claim in the present action is independent of any conveyances from them. If they ever, in fact, possessed any interest in the premises, they still retain it against any possible interference with their rights from the action of their attorney, as disclosed by the conveyances in question.
The objection to the witness having been overruled, and his testimony, as well as the testimony of other witnesses, having proved the facts for which he was called, the plaintiffs rested; and thereupon the defendant moved for a nonsuit, on the ground that the evidence had not established any joint seizin or right of possession in them, but had affirmatively established that there was no such joint seizin or right. The motion appears to have been based upon the deed from Robinson to Mary Jane Mott, one of the plaintiffs. That deed recites a moneyed consideration of one hundred dollars; and hence, the presumption of the law arises, that the premises conveyed constitute the common property of the community existing between the grantee and her husband. All property acquired by either husband or wife, after marriage, except such as is acquired by gift, bequest, devise or descent is, by the express terms of the statute, declared to be common property. (Act concerning Rights of Husband and Wife, sec. 2.) The presumption attendant upon the fact recited can only be overcome by clear and satisfactory proof that the acquisition was made with the separate funds of the wife. (Meyer v. Kinzer and Wife, 12 Cal.) No such proof was offered in the present case. The premises were to be treated, therefore, as common property, the entire management and control of which, with the absolute right of possession and disposition, were vested in the husband, and the action should have been instituted in his name alone. But the misjoinder of the wife constituted no ground for the motion to nonsuit the plaintiffs; it would have constituted good ground of demur[558]*558rer, had the defect been apparent upon the face of the complaint, or for motion to dismiss as to the wife on the trial. Such was not, however, the motion, and no error is assigned upon the ruling on the demurrer. The refusal of the nonsuit was therefore correct.
A witness for the defense was then produced, who stated that he knew where the defendant resided; that he knew where Dry creek was, and where the creek entered Bear river; that he knew of no other Dry creek than the one he named; and did not think there was any other creek by that name between the foot-hills and the mouth of Bear river. He was then requested to state, if he knew, whether the lands occupied by the defendant for the last two years or more, or any part thereof, lay below Dry creek and Bear river, the counsel declaring that the object of the inquiry was to show that the lands were not within the calls of the patent or grant. To the inquiry, objection'was taken and sustained, on the ground that it did not relate to the starting point or monument named in the patent—the Court offering at the time to allow the witness to be asked whether the lands were situated below the oak tree marked as the commencement or first monument of the patent. Other witnesses were produced to whom the same question was asked, and in a similar manner disposed of. The ruling in this respect constitutes the last error assigned for a reversal of the judgment. We are of opinion that the action of the Court in the matter was proper. The map incorporated into the patent shows that there are two streams emptying into Bear river within the calls of the patent, each of which is. termed Dry creek, and that below one of them, and above the other, the premises in controversy are situated. The description in the patent commences at an oak tree, marked with a cross (x) and certain figures and letters, at the junction of Dry creek and Bear river, and the map incorporated into the patent designates the position of the oak tree the starting point—as at the mouth of the lower Dry creek. Of the position of that point from the description and map, there could be no possible doubt. If the object of the inquiry, as stated, were to show that the premises in controversy were outside of the calls of the patent, it should have been limited to' that Dry creek at the junction of which the marked oak tree stands, as otherwise the answers of the witness, who stated he knew only of one creek of that name, would only have tended to confuse and mislead the jury. The witness had not even been asked whether he knew the situation or the exists ence of the lower creek; and if he referred to the upper creek the ques[559]*559tion was irrelevant, and his answer would have been immaterial. The ruling of the Court was not to exclude any legitimate proof that the premises lay below the creek which the patent designated, but to require it to be directed to such creek, and not to the other creek of the same name. It was not intended to exclude proof that the premises were not covered by the patent, but to prevent, in the making of such proof, the creation of confusion in the minds of the jury.
Judgment affirmed.