Ejectment. The plaintiff was nonsuited at the trial, and appeals from, the' judgment upon a bill of exceptions. The question is, whether the plaintiff’s evidence was sufficient to make a prima facie case. His evidence cоnsisted of two certificates of purchase and certain other documentary evidence tending to show that the land was swamp-land, and certain testimony in relation to said certificates. The case has been before the supreme court of the United States, and that court held that the documents made a prima facie case for the plaintiff. (Wright v. Roseberry,
1. As to the land for which no patent has been issued, we thinlc that the certificates made a prima facie case. The indorsement does not сonstitute a material alteration. It does not purport to change the tenor or character of the instrument, but was a mere minute or memorandum of subsequent action. Such memorandum does not purpоrt to be a cancellation of the certificate, and was not so, unless such a consequence results as a matter of law from the transaction appearing from the memorandum, viz., from the surrender оf the certificates and the issuance of patents for a portion of the land described therein. The mere surrender of a certificate of purchase does not destroy its validity as evidence оf title. The law requires that it shall be surrendered before a patent can issue. (Pol. Code, sec. 3519; Duncan v. Gardner,
2. When a patent has been issued for the land сalled for by a certificate of purchase, the latter is superseded by the patent, and becomes functus officio. In this view, the plaintiff’s certificate was no longer evidence of ownership of the portion for which a patent had issued; but wé think that, so far as this portion was concerned, the plaintiff made aprima facie case by the above-mentioned ’proof of his patents. As above stated, the surveyor-general distinctly testified thаt patents had been issued,-as noted in the indorsements upon the certificates, for part of-the land “ described in the certificates”; • and taking his testimony in connection with said indorsements and certificates, the time when, the land for which, and the person-to whom- the patents were issued sufficiently ap
There is a statement tоwards the close of the bill of exceptions that “all of the documentary evidence was objected to by the defendants, and each of them, upon the grounds of irrelevancy, incompetency, аnd immateriality.” This does not show whether said objections were made at the time the evidence was offered, or towards, the close of the trial. From the place in the bill of exceptions where the objection is inserted, the latter inference might perhaps be drawn. If such' is the proper construction of the record, the objections were too late; for it is a familiar rule of practice that thе party must make his objections to evidence at the time it is offered. If, therefore, the record is to be construed as showing that the objections were not made until towards the close of the trial, they were too late, and the case stands as if no objections were made. But without saying what the proper construction is, and assuming in favor of this branch of the respondents’ case that the objections were mаde at the time the evidence was introduced, the same result follows; for even where evidence is erroneously admitted against objection, but tends to prove something, full effect must be given to it upon motiоn for nonsuit, and upon the-question of the insufficiency of the evidence to support the decision. This has been decided with reference to the insufficiency of the evidence. (McCloud v. O’Neall,
Now, if either of the above positions is correct,—that is to say, if the plaintiff’s evidence made a prima facie, case either as to the land for which рatents had been issued to him, or as to the land for which patents had not been issued,—the nonsuit cannot stand; for it cannot be seen from the record that the motion for nonsuit was made as to any particular рortion of the tract sued for (assuming that such a course would have been proper). The record states that the motion for nonsuit was made "upon the several grounds then and there duly specified and statеd,” but it does not show what such grounds were, or whether the motion was as to a whole or a portion of the tract. Consequently, if either of said positions be correct, the judgment against plaintiff for the whole traсt was erroneous.
3. It is contended for the respondents, however, that the certificates of purchase were not, as a matter of fact, introduced in evidence. They certainly, were not formally introduced. They were at the time in the custody of the surveyor-general. He was called as a witness, and produced and identified them. And the record states that the certificates of purchase were then placed in the hands of the reporter, by the following order by the court: “It is ordered that the surveyor-general leave them in the custody of the court until the conclusion of the case, thereupon to be rеturned to him at his office.” The parties examined and cross-examined the surveyor-general concerning them, and concerning the indorsements thereon. Furthermore., it is not entirely clear that the respondеnts’ objections above quoted were not made to them; but whether they were or not, it would seem clear from the other circumstances mentioned
We therefore advise that the judgment be reversed, and the cause be remanded for a new trial.
Foote, C., and Gibson, C., concurred.
For the reasons given in the foregoing opinion, the judgment is reversed, and cause remanded for a new trial.
Rehearing denied.