The objection to the introduction of the book, called in the record “Book No. 3,” containing what purported to be Alcalde grants, is untenable. The book purported to contain the grant to one Jenkins, under whom the plaintiff claimed title to the premises in controversy. The grant in question, as appears from the book, was signed by one John Burton, and attested by one Charles White as Clerk. It was shown by the witness Harry Bee, who was sworn for that purpose, that at the time the grant bears date, Burton was the Alcalde of the Pueblo de *122San José de Guadalupe, in which the land in controversy is located, and that White was his Clerk; that both Burton and White were dead; that the signatures of Burton and White, appended to the grant, were genuine, and that the book was one of the books of the Alcalde’s office in which Alcalde grants were entered. It further appears, from the testimony of the witness Tisdall, who was Deputy Recorder of Santa Clara County, (the county in which the land is located,) that the book belonged to the Recorder’s office of that county. From these facts, we think the Court was warranted in finding that the book was one of original entries, and therefore entitled to be admitted as evidence upon that ground; but whether upon that ground or not, the evidence was sufficient to entitle the book to admission under the provisions of the Act to legalize certain records in the Recorder’s office of the County of Santa Clara. (Statutes of 1861, 507.)
The further objection to the grant itself, on the ground that Burton had not appended to his signature his official designation, is, in our judgment, without merit. The Alcalde states his official character at the commencement of the grant, which, together with the fact already proved that he was the Alcalde at the time the grant bears date, was sufficient to show that he acted in his official capacity notwithstanding no descriptio officii was appended to his signature.
The objection that there was no proof of delivery is also untenable. The grant contained in the book being the original grant, it follows that there could have been no delivery to the grantee other than such as the entry of the grant in the book kept for that purpose imports, except by duplicate. The production of such duplicate, if any was given by the party claiming under the grant, would be prima facie evidence of delivery.
The second section of the Act above cited provides that the books of record mentioned therein (of which Book No. 3 is one) u * * * inay offered in evidence in the same manner and with the same force and effect in all cases as if they had been produced from the custody of the person claiming under or *123through such deed, conveyance, or other instrument in writing.” This language was obviously intended to give to the production of the book in question the same force and effect upon the question of delivery which would ordinarily attach to the production of an original deed or grant by one claiming under it; that is to say, make it prima facie evidence of delivery.
It is claimed that the Court erred in admitting the deeds of the heirs of Jenkins to the plaintiffs, upon the ground that they were only quitclaim deeds, and therefore insufficient to pass the title. In Sullivan v. Davis et al., 4 Cal. 291, which was an action of ejectment, the plaintiff claimed under a quitclaim deed, and it was there held that it was sufficient to enable the grantee to maintain ejectment if his grantor could have done so.
It is next claimed that the Court erred in excluding the proceedings of the Probate Court of Santa Clara County, in the matter of the estate of Jenkins, through which the defendant claimed to have become vested with the title of the original grantee. It appears from the record, that Jenkins died in August, 1848, prior to the existence of California as a State. In Grimes’ Estate v. Norris, 6 Cal. 621, it was held that the Probate Court had no jurisdiction over the probate of the will of a party who died before the organization of the State Government. The doctrine there laid down was subsequently affirmed in Tevis v. Pitcher, 10 Cal. 465. There is no difference in principle between those cases and the present, so far as the question under consideration is concerned.
The Act to regulate the settlement of the estates of deceased persons makes no express provision for an administration upon the estates of persons who died prior to the adoption of the Constitution, and in the absence of any such provision it cannot be so construed as to embrace such cases. It was the evident intention of the Legislature to leave such estates to be settled by and under the law as it stood prior to the Constitution.
It follows that the Probate Court could assume no jurisdic*124tion over the estate of Jenkins, and. that all its proceeding's and their consequences, being, therefore, null and void, were properly excluded.
The next error assigned is, that the Court erred in excluding a mass of evidence tending to prove in the defendant’s landlord an equitable title to one half of the premises in controversy, derived from one Curl, who was the surviving partner of Jenkins, and claimed that the lot in question had been purchased by Jenkins with partnership funds, and that by reason thereof he held in trust for him to that extent. A sufficient answer to this assignment is found in the fact that no equitable title is set out in the answer. The name of Curl is nowhere mentioned in the answer, nor his claim of title referred to, nor are any other facts upon which an equity could be based intelligibly stated. Under the pleadings, we are compelled to hold that the parties stood upon their legal rights only. If the defendant in an action of ejectment desires to avail himself of an equitable defense as a bar, he must set it up with the same particularity which is observed in a bill in equity. The equitable title is for the Court, and not the jury, and must be sufficiently stated to warrant the Court in granting a decree which would estop the further prosecution of the action; and, unless this is done, the defendant must be regarded as relying solely upon his legal title. For these reasons, the Court did not err in excluding the evidence in question.
Under the view we have taken, the defendant is forced to rely upon his possession, which cannot stand in the presence of the plaintiff’s title. Nor can that possession be aided by the Statute of Limitations. The title of the plaintiff is derived from the Mexican Government, and being yet unconfirmed, the statute does not run against it.
Judgment affirmed.
Mr. Justice Rhodes, having been of counsel, did not sit on the trial of this case.