Brotherton v. Mart

Headnote

Where an original instrument, proved to be lost, has been recorded, it is error to admit parol evidence of its contents, unless the failure to produce the record is accounted for.

Appeal from the District Court of the Twelfth Judicial District.

This was an action of ejectment to recover possession of a town lot in the city of San Francisco:

On the trial, the plaintiff proved the loss of the original deed or grant of the lot made to plaintiff and A. A. Green, on their purchase of the lot at the first town sale in 1849. Plaintiff also proved that the deed was recorded, shortly after the purchase, in the Alcalde’s office.

Upon this proof plaintiff offered to prove the contents of the deed, which was objected to by defendant. The objection was overruled and the plaintiff proved the contents of the deed, the defendant excepting. Judgment was entered in the court below in favor of plaintiff. Defendant moved for a new trial, which was overruled, and defendant appealed.