Evidence SEC. 1188. The evidence must satisfactorily prove to must prove, the officer the following facts: what. Certificate of officer. Officers authorized to do certain things. Officers must affix their signatures. 1. One or more of the conditions mentioned in the preceding section; and, 2. That a witness testifying knew the person whose name purports to be subscribed to the instrument as a party, and is well acquainted with his signature, and that it is genuine; and, 3. That a witness testifying personally knew the per son who subscribed the instrument as a witness, and is well acquainted with his signature, and that it is genuine. [New section.] "Conveyances," Sec. 15-modified. SEC. 1189. The officer shall indorse on the instrument his certificate, stating the precedent fact contained in the subdivision of Sec. 1187 upon which is founded the right to prove the execution of the instrument by other than subscribing witnesses; also, the facts required to be proved in the preceding section. SEC. 1190. Officers authorized to take the proof of instruments, are authorized 1. To administer oaths or affirmations, as prescribed in Sec. 2093, CODE OF CIVIL PROCEDURE. 2. To issue subpoena, as prescribed in Sec. 1986, CODE OF CIVIL PROCEDURE. 3. To punish for contempt, as prescribed in Secs. 1991, 1993, 1994, CODE OF CIVIL PROCEDURE. The civil damages and forfeiture to the party aggrieved, are prescribed in Sec. 1992, CODE OF CIVIL PROCEDURE. NOTE. The sections above cited need to be examined, to make sure that they are ample enough for the purpose. The remedies in that Code and in the Conveyance Act are substantially duplicate. SEC. 1191. Officers taking and certifying acknowledg ments or proof of instrument for record, must authenticate their certificates by affixing thereto their signatures, followed by the names of their office and the city, county or district within which they have jurisdiction; also, their scals of office, if, by the laws of the State or country where the acknowledgment or proof is taken, or by authority of which they are acting, they are required to have official seals. [New section.] Hastings vs. Vaughan, 5 Cal., 315; Mott vs. Smith, 16 SEC. 1192. When the acknowledgment or proof of the NOTE. This section is a substitute for special proceedings before the County Judge, provided for in seven sections of the Act of 1860 (Stats. 1860, 177). SEC. 1193. Any person interested under an instrument entitled to be proved for record, may institute an action in the District Court, under the CODE OF CIVIL PROCEDURE, against the proper parties, to obtain a judgment proving such instrument. The mode of proceeding and the rules of evidence are the same as in other civil actions. A copy of the judgment, showing the proof of the instru ment, and attached thereto, entitles such instrument to record, with like effect as if acknowledged. [New section.] NOTE. This is an ample concurrent remedy, which would be used only in cases where it is diicult to make the proof under the strict statutory mode. SEC 1194 The legality of the execution, acknowledgment, proof, form or record of any conveyance or other instrument heretofore made, executed, acknowledged, proved or recorded, shall not be affected by anything contained in this chapter, but shall depend for its validity and legality upon the laws then existing. "Conveyances," Sec. 42. SEC. 1195. All conveyances of real property heretofore made and acknowledged, or proved according to the laws in force at the time of such making and acknowledgment or proof, shall have the same force as evidence, and be recorded in the same manner and with the like effect as conveyances executed and acknowledged in pursuance of this chapter. "Conveyances," Sec. 41. Statutes curing ments, etc., SEC. 1196. The repeal or superseding of statutes, vali acknowledg- dating or curing void or defective proof or acknowledg preserved. ment, or recording of an instrument, does not abolish or alter the effects of such statutes, but they continue in like manner and extent as if the statutes were not repealed or superseded. [New section.] NOTE.-Based on a large number of curative statutes. Purchaser for value. ARTICLE III. EFFECT OF RECORDING. SECTION 1200. Purchaser for value. 1201. Unrecorded instrument valid between the parties. 1202. Unrecorded instrument, when void. 1203. Priority of record. 1204. Purchase from subsequent grantee without notice of prior 1205. When prior and subsequent grant are both recorded, a vendee 1207. Actual notice, etc., evidence of bad faith. 1208. Circumstances to rebut presumption. 1209. Unrecorded instruments void as against encumbrances. 1210. Sheriff's grant has relation to encumbrance as muniment of title. 1211. Sheriff's grants and certificates of purchase subject to this article. 1212. Priority of record gives priority of right. 1213. Action in District Court to quiet title in certain cases. SEC. 1200. A purchaser for value of real property is one who acquires an interest in property under a real instrument mentioned in Sec. 1092, and for which he has paid a valuable consideration. A mortgagee or encumbrancer, and his assignees, are also purchasers for value when the mortgage or encumbrance is executed or created to secure bona fide obligations. instrument SEC 1201. An unrecorded instrument is valid as be- Unrecorded tween the parties thereto and those who have notice valid be thereof. [New section.] Based on "Conveyances," Secs. 24, 25, 26; Landers et al. vs. Bolton, 26 Cal., 393. tween the parties. instrument, SEC. 1202. An unrecorded instrument is void as against Unrecorded an instrument acquired in good faith and for value, prop- when void. erly acknowledged, or proved, certified and recorded, affecting the same property and derived from the same source. [New section.] Based on "Conveyances," Secs. 24, 25, 26; Clark vs. Foy, 20 Cal record. SEC. 1203. A prior instrument affecting real property, Priority of recorded after the recording of a subsequent instrument affecting the same property, and derived from the same source, must not be deemed recorded as against the subsequent instrument. [New section.] from subse grantee SEC. 1204. A person acquiring an instrument in good Purchase faith and for value, of a person holding under a recorded quent instrument, takes the right or property, as against any without claims of another holding under a prior unrecorded instrument affecting the same property and derived from the same source. [New section.] Mahoney vs. Middleton, Supreme Court of Cal., Jan. Term, 1871. SEC. 1205. When a prior instrument is recorded sub. sequently to the recording of a subsequent instrument, a person taking from the holder of the subsequent instrument, takes with notice of all facts and conditions existing between the holders of the prior and subsequent instruments as to good faith and valuable consideration. [New section.] SEC. 1206. The holder of a recorded instrument is presumed, as against the holder of an unrecorded instrument, to be a holder in good faith, but the former must affirmatively show a valuable consideration. [New section.] NOTE. This modifies the rule in Lander vs. Bolton (26 notice of Actual notice, etc., evidence of bad faith. Circumstances to rebut presumption. Unrecorded instruments void as SEC. 1207. Actual notice of the unrecorded instru ment, by the holder of the recorded instrument subse- SEC. 1208. Possession of the premises under the unre corded instrument, or inadequacy of consideration for the recorded instrument, are circumstances tending to show actual notice or bad faith, and to rebut the presumption mentioned in Sec. 1206. [New section.] Fair vs. Stevenot, 29 Cal., 486; Stafford vs. Lick, 7 Cal., 489; Hunter vs. Watson, 12 Cal., 376; Lastrade vs. Baith, 19 Cal., 676; Dutton vs. Wauschaner, 21 Cal., 627; Lander vs. Bolton, 26 Cal., 393. SEC. 1209. An unrecorded instrument is also void as against encumbrances acquired in good faith and for value, cumbrances. and duly authenticated and recorded by authority of any existing law. against en Sheriff's grant has relation to en cumbrance [New section.] "Conveyances," Secs. 24, 25, 26, amplified to cover all classes of liens. Hunter vs. Watson, 12 Cal., 363. SEC. 1210. A grant made by a Sheriff, or other officer or person, to satisfy an encumbrance on real property, as muniment relates back to the time of creating or recording the encumbrance, and both the encumbrance and grant are muniments of the same title. of title. Sheriff's grants and certificates of purchase subject to this article Priority of record gives priority of right. [New section.] SEC. 1211. Sheriffs' grants or certificates of purchase are subject to the provisions of this article, and are governed by the same rules with respect to unrecorded instruments as are other real instruments. SEC. 1212. Priority of record establishes priority of right, subject to the conditions of good faith and valuable. consideration. [New section.] Based on "Conveyances," Sec. 26. NOTE.-Instruments, "to operate as notices to third persons," must be recorded. ("Conveyances," Sec. 24, 1850.) Instruments "shall, from the time of filing, impart notice to all persons," and all" 'subsequent purchasers and mortgagees shall be deemed to purchase with notice." ("Conveyances," Sec. 25, 1850.) The words "all persons" mean subsequent "purchasers and mortgagees." (McCabe vs. Grey, 20 Cal., 509.) |