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valid.

be recorded.

recorded void

ing of her husband, that she executed the same freely and voluntarily, without fear or compulsion, or undue influence of her husband, and that she does not wish to retract the execution of the same. Every certificate which substantially conforms to the requirements of What certificates this act shall be valid.

Sec. 24. Every conveyance whereby any real estate is conveyed, Conveyance to or may be affected, proved, or acknowledged, and certified in the parties must manner prescribed in this act, to operate as notice to third persons, shall be recorded in the office of the recorder of the county in which such real estate is situated, but shall be valid and binding between the parties thereto without such record. Sec. 25. Every such conveyance, certified and recorded in the From time of

recording notice manner prescribed in this act, shall, from the time of filing the same to subsequent

purchasers, etc. with the recorder for record, impart notice to all persons of the contents thereof, and all subsequent purchasers and mortgagees shall be deemed to purchase with notice.

Sec. 26. Every conveyance of real estate within this state, here- Conveyances not after made, which shall not be recorded as provided in this act, shall against bona fide be void as against any subsequent purchaser, in good faith and for a purchasers. valuable consideration, of the same real estate, or any portion thereof, where his own conveyance shall be first duly recorded.

Sec. 27. Every power of attorney, or other instrument in writing containing the power to convey any real estate as agent or attorney estate to be acfor the owner thereof, or to execute as agent or attorney for another, any conveyance whereby any real estate is conveyed or may be affected, shall be acknowledged or proved, and certified and recorded as other conveyances whereby real estate is conveyed or affected, are required to be acknowledged or proved, and certified and recorded.

Sec. 28. No such power of attorney or other instrument, certified Power of attor. and recorded in the manner prescribed in the preceding section, shall revoked until be deemed to be revoked by any act of the party by whom it was recorded. executed, until the instrument containing such revocation shall be deposited for record in the same office in which the instrument containing the power is recorded.

Sec. 29. Every conveyance or other instrument, conveying or Deed duly, affecting real estate, which shall be acknowledged or proved and cer- may be read tified, as hereinafter prescribed, may, together with the certificate of acknowledgment or proof, be read in evidence without further proof.

Sec. 30. When any such conveyance or instrument is acknowledged Transcript of or proved, certified and recorded in the manner hereinafter prescribed, be given in and it shall be shown to the court that such conveyance or instrument is lost, or not within the power of the party wishing to use the same,

Powers of attor. ney to sell real

same manner as conveyancas.

acknowledged

in evidence.

evidence.

Certificate of

etc., may be rebutted.

When acknow

Absolute

Claimsnts out of possession may

the record thereof, or the transcript of such record, certified by the recorder under the seal of his office, may be read in evidence without further proof.

Sec. 31. Neither the certificate of the acknowledgment, nor of the acknowledgment,

proof of any such conveyance or instrument, nor the record, nor the transcript of the record of such conveyance or instrument, shall be conclusive, but the same may be rebutted.

Sec. 32. If the party contesting the proof of any such conveyance ledged deed must be established or instrument, shall make it appear that any such proof was taken by proof.

upon the oath of an incompetent witness, neither such conveyance or instrument, nor the record thereof, shall be received in evidence until established by other competent proof.

Sec. 33. If any person shall convey any real estate, by conveyance party not having purporting to convey the same in fee simple absolute, and shall not legal estate.

at the time of such conveyance have the legal estate in such real estate, but shall afterwards acquire the same, the legal estate subsequently acquired shall immediately pass to the grantee, and such conveyance shall be valid as if such legal estate had been in the grantor at the time of the conveyance.

Sec. 34. Any person claiming title to any real estate may, notconvey interest withstanding there may be an adverse possession thereof, sell and convey

his interest therein in the same manner and with the same effect as if he was in actual possession thereof.

Sec. 35. The term “real estate,” as used in this act, shall be construed as co-extensive in meaning with lands, tenements, and hereditaments.

Sec. 36. The term “conveyance," as used in this act, shall be construed to embrace every instrument in writing by which any real estate or interest in real estate is created, aliened, mortgaged, or assigned, except wills, leases for a term not exceeding one year, executory con

tracts for the sale or purchase of lands, and powers of attorney. Recorded

Sec. 37. Any mortgage that has been, or may hereafter be, recordmortgage how ed, may be discharged by an entry in the margin of the record thereof, discharged.

signed by the mortgagee, or his personal representative or assignee, acknowledging the satisfaction of the mortgage, in the presence of the recorder or his deputy, who shall subscribe the same as a witness, and such entry shall bave the same effect as a deed of release duly acknowledged and recorded.

Sec. 38. Any mortgage shall also be discharged upon the record Discharge of

thereof by the recorder in whose custody it shall be, whenever there shall be presented to him a certificate executed by the mortgagee, his personal representative or assignee, acknowledged, or proved and cer

claimed

Term "real estate.

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Term " conveyance."

mortgage, or mortgages, certificate of payment.

refusing a certi.

tified as hereinbefore prescribed to entitle conveyances to be recorded, specifying that such mortgage has been paid, or otherwise satisfied or discharged.

Sec. 39. Every such certificate, and the proof or acknowledgment Certificate, etc, thereof, shall be recorded at full length, and a reference shall be at length. made to the book containing such record, in the minutes of the discharge of such mortgage, made by the recorder upon the record thereof.

Sec. 40. If any mortgagee, or his personal representative or as- Penalty for siguee, as the case may be, after a full performance of the conditions ficate of

discharge. of the mortgage, whether before or after a breach thereof, shall, for the space of seven days after being thereto requested, and after tender of his reasonable charges, refuse or neglect to execute and acknowledge a certificate of discharge or release thereof, he shall be liable to the mortgagor, his heirs or assigns, in the sum of one hundred dollars, and also for all actual damages occasioned by such neglect or refusal. Sec. 41. All conveyances of real estate heretofore made, and ac- Conveyances

heretofore made, knowledged or proved according to the laws in force at the time of etc., to be

recorded, etc such making and acknowledgment of proof, shall have the same force as evidence, and be recorded in the same manner and with the like effect as conveyancesexecuted and acknowledged in pursuance of this act. Sec. 42. The legality of the execution, acknowledgment, proof, Legality of exe

, form, or record of any conveyance or other instrument heretofore etc., heretofore made, executed, acknowledged, proved, or recorded, shall not be af- affected. fected by anything contained in this act, but shall depend for its validity or legality upon the laws then existing and in force.

CHAPTER CXXIII.

AN ACT to regulate Proceedings in Civil Cases, in the Courts of

Justice of this State.—[Passed April 29, 1851.]

The People of the State of California, represented in Senate and

Assembly, do enact as follows:

TITLE I.

OF THE FORM OF CIVIL ACTIONS, AND OF THE PARTIES THERETO.
SECTION 1. There shall be in this state but one form of civil ac- Only one form

of civil action tion, for the enforcement or protection of private right, and the redress or prevention of private wrongs.

Harried woman a party.

Parties defined.

Sec. 2. In such action the party complaining shall be known as

the plaintiff, and the adverse party as the defendant. Trial of issues Sec. 3. When a question of fact not put in issue by the pleadings not raised by pleadings. is to be tried by a jury, an order for the trial may be made, stating

distinctly and plainly the question of fact to be tried; and such or

der shall be the only authority necessary for a trial. By whom action

Sec. 4. Every action shall be prosecuted in the name of the real to be prosecuted.

party in interest, except as otherwise provided in this act. Action hy Sec. 5. In the case of an assignment of a thing in action, the acassignee of chose in action. tion by the assignee shall be without prejudice to any set-off or other

defence, existing at the time of, or before notice of the assignment; but this section shall not apply to a negotiable promissory note, or bill of exchange, transferred in good faith, and upon good considera

tion before due. Action by Sec. 6. An executor or administrator, a trustee of an express trust, executor, etc.

or a person expressly authorized by statute, may sue without joining with him the persons for whose benefit the action is prosecuted.

Sec. 7. When a married woman is a party, her husband shall be joined with her; except that,

1st. When the action concerns her separate property, she may sue alone;

2d. When the action is between herself and her husband, she may

sue or be sued alone. Defence by Sec. 8. If a husband and wife be sued together, the wife may demarried woman.

fend for her own right. Infants to appear

Sec. 9. When an infant is a party he shall appear by guardian, by guardian.

who may be appointed by the court in which the action is prosecuted,

or by a judge thereof, or a county judge. Gnardian, how Sec. 10. The guardian shall be appointed as follows: appointed.

1st. When the infant is plaintiff, upon the application of the infant, if he be of the age of fourteen years; or if under that age, upon the application of a relative or friend of the infant :

2d. When the infant is defendant, upon the application of the infant, if he be of the age of fourteen years, and apply within ten days after the service of the summons : if he be under the age of fourteen, or neglect so to apply, then upon the application of any other party

to the action, or of a relative or friend the infant. Action for injury Sec. 11. A father, or, in case of his death or desertion of his fam.

ily, the mother, may maintain an action for the injury or death of a child; and a guardian for the injury or death of his ward.

Sec. 12. All persons having an interest in the subject of the action, plaintiff.

and in obtaining the relief demanded, may be joined as plaintiffs, except when otherwise provided in this act.

to child or ward.

Who to be

Sec. 13. Any person may be made a defendant, who has or claims Who to be

defendant. an interest in the controversy, adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein. Sec. 14. Of the parties to the action, those who are united in in- Who to be

joined as parties terest shall be joined as plaintiffs, or defendants; but if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint; and when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.

Sec. 15. Persons severally liable upon the same obligation or in- Several parties strument, including the parties to bills of exchange and promissory one action. notes and sureties on the same or separate instruments, may all or any of them be included in the same action, at the option of the plaintiff.

Sec. 16. An action shall not abate by the death, or other disability Transfer of of a party; or by the transfer of any interest therein, if the cause death of party, of action survive or continue. In case of the death, or other disabil. ity of a party, the court on motion, may allow the action to be continued by or against his representative or successor in interest. In case of

any other transfer of interest, the action may be continued in the name of the original party; or the court may allow the person to whom the transfer is made to be substituted in the action.

Sec. 17. The court may determine any controversy between parties Court may before it, when it can be done without prejudice to the rights of controversy, etc. others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court shall order them to be brought in.

effect of.

determine

TITLE II.

OF THE PLACE OF TRIAL OE CIVIL ACTIONS.

situated.

Section 18. Actions for the following causes shall be tried in the Actions to be county in which the subject of the action, or some part thereof, is sit- subject matter uated, subject to the power of the court to change the place of trial, as provided in this act:

1st. For the recovery of real property, or of an estate, or interest therein, or for the determination, in any form, of such right or interest, and for injuries to real property:

2d. For the partition of real property :

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