Treadwell v. Reynolds

47 Cal. 171 | Cal. | 1873

By the Court:

The conveyance to Clark and George of Boyd’s title, derived to him under the Starkey Janion execution sale, was confessedly made in November, 1854. If the conveyance dated October 17th, 1854, was delivered to Tillay as lately as December, 1854, the plaintiff derived nothing by the execution sale under his judgment against Clark and George, docketed in March, 1857. The Court below found as a fact that the deed to Tillay was delivered on the 16th of December, 1854. That the date found in the body of the deed is presumptively the date at which it was delivered, is not questioned; that this presumption, however, is not conclusive, but that the true date of delivery may be proved aliunde, is also clear.

The evidence of Mary Reynolds is to the effect that the deed was not delivered until the month of December, at or about the time the first certificate of acknowledgment was indorsed on the instrument, which was December 16th, 1854. The plaintiff gave no evidence to contradict that of Mary Reynolds, as to the time at which the deed was delivered, but relied wholly on the presumption arising on the face of the instrument. We certainly cannot say that this mere presumption, unaided by other proof, was, of itself, sufficient to absolutely establish the case of the plaintiff in this respect, or that the evidence for the defendants, when balanced against the presumption, did not amount to a substantial conflict.

Judgment and order denying new trial affirmed.