Posten v. Rassette

| Cal. | Jul 1, 1855

Heydenfeldt, J., delivered the opinion of the Court.

Murray, C. J., concurred.

1. The first objection of the appellant, relates to the form of the deed. It is insisted, that as it was executed while the Mexican laws were in force, that to give it validity, it should have been executed according to the forms prescribed by those laws. The objection comes too late. It ought to have been taken on the trial at nisi prius. It would then have given an opportunity to the defendants to prove that custom had changed the law. This would be perfectly legitimate, according to the rules of the civil law, and would be called a custom beyond the law. Indeed, it may be a question, (not now necessary to decide,) whether, when a well established custom, extending over a large territory, has changed the general law, the Courts are not bound judicially to take notice of the change, especially when the change was eo-extensive with their jurisdiction.

2. It is next objected that the power of attorney from Southard to Parker, was destroyed by fire before the latter sold the lots by virtue of its authority, and that therefore the authority was gone, To this the answer is apparent, that it was not the paper which gave the power, but the will of the man who executed it. It was necessary by the prudent regulations of the law, that the intention of the principal should be disclosed by him on paper; but this once done, there is no reason, upon the loss of the paper, why its existence should not be shown, and the power continue, so as to carry out the object of both the principal and agent. In this case, too, it was something more than a mere naked power: according to the evidence, it was a power coupled with an interest. It was received by Parker as a security for the indebtedness of his principal to him; and although that may not have appeared on the face of the instrument, yet, upon proper allegations, sustained by unequivocal proofs, a Court of Equity would have restrained its revocation, and enabled the attorney to execute the trust. He had a vested right, founded upon good consideration, and was entitled to protection.

3. The proof was sufficient to establish the existence, loss, and contents of the power of attorney, prima facie. In the case of lost instruments where no copy has been preserved, it is not to be expected that witnesses can recite its contents, -word for word;—it is sufficient if intelligent witnesses who had read the paper, understood its object, and can state it with precision. Here, two witnesses, both of whom bad been accustomed to draw papers of the like kind, and one of whom was a Rotary Public, testify to the contents of the power of attorney, by stating clearly and precisely its object. I have no doubt of the competency of this evidence, and there was no error in admitting it.

4. The next objection is, that there is not shown to have been a seal to the power of attorney. The Mexican system of jurisprudence knew not the common law doctrine of seals. The power was therefore good, with or without a seal.

It remains but to add, that the judgment is aErmed.