Talbert v. Stewart

39 Cal. 602 | Cal. | 1870

Rhodes, C. J.,

delivered the opinion of the Court, Wallace, J., Crockett, J., and Sprague, J., concurring:

The bill of exceptions shows that the plaintiff “offered in • evidence the record of a deed from John A. Sutter, by his. attorney in fact, John S. Fowler;” that “the defendants objected to the reading of said deed in evidence, upon the ■ground that there was no lawful evidence of the execution of' said deed, and that it was not properly acknowledged. The certificate of acknowledgment is as follows, to wit ;

“ State of California, County of Sacramento. On the 22d day of October, A. D. 1850, personally appeared before me, a Notary Public in and for said county, John A. Sutter, by his attorney in fact, John S. Fowler, known to me to be the person who executed the within instrument of writing, who acknowledged to me that he signed, sealed and delivered the same as his voluntary act, and for the uses and purposes therein mentioned.

“In Avitness AAdiereoí, I have hereunto set my hand and private seal, having no notarial seal, the day and year above written.

“[Seal.] James C. Zabriseie,

“Notary Public.”

The deed to which the certificate of acknowledgment is attached is executed as folloAvs, to-Avit :

“ John A Sutter, [Seal.]

“By his attorney, John S. Foavler.”

The Court sustained the objection, and excluded the evidence.

This is not an objection that the authority of Fowler to execute the deed was not shoAvn, but the objection relates to the acknowledgment alone. The acknowledgment is sufficient, as the acknoAvledgment of Fowler, the attorney in fact of Sutter.

Judgment reversed, and cause remanded.

Temple, J., expressed no opinion.