I. Whether the first exception was well taken or not depends upon the rank as evidence assigned by the Mexican law, which was then in force, to the entry in “ Book A of Original Grants.” .
By the instructions approved by the King of Spain, and made for the purpose of establishing the Town of Pitic, in the Province of Sonora, and directed to be adopted and followed in establishing other new settlements, promulgated on the 14th of November, 1789, a record of the proceedings of the public functionaries authorized to make grants of town lots to settlers was required to be kept and preserved in the archives of the settlement. Of these instructions the seventeenth section is to the following effect:
“ Section 17. The Commissioner in whose charge shall be the new settlement and the distribution of lands and town lots, shall make a book or register in which shall appear the original proceedings (las diligencias originales) that were taken, which book shall be kept in the archives of the Ayuntamiento of the new settlement; and an attestation or certificate of these proceedings shall be given to each settler, which shall explain with brevity, distinctness and clearness the extent and boundaries of the building lots and sowing lots which he may have assigned to them respectively; which instrument shall serve them as written evidence of proprietorship for themselves, their children and descendants, warning them that for this purpose they shall keep it, and that if they were to lose it by some unintentional accident they may have recourse to the Commissioner or to the Ayuntamiento to give them another like copy of the proceedings, which for this purpose shall remain archived.”—(Dwinelle’s Colonial History of San Francisco—Addenda, p. 11.)
In view of this language there can be no doubt as to the mode in which grants of town lots were to be made. The *509entire proceedings were to be first entered in the official book required to be kept for that purpose, signed and attested in due form by the proper officer. A coj>yAf'skimmary state-given to the grantee as evidence pf^iis tfífó, an3& in{|he event
lots, and, as such, primary evidence of the acts there recited under any system of law with which we are acquainted. Entries in such a book, if made in conformity with the regulations of the 14th of November, 1789, became, under the Mexican law, what is denominated an authentic instrument; that is to say, an instrument which proves itself, and, under the common law, an official record. Under both systems such entries have always been esteemed the highest and most satisfactory evidence of the facts which they recite, because they are made by the direction of the law and are of public concern, and because they are made under the sanction of an oath, or, at least, of official duty, and made at or about the time the acts which they recite transpired. They are retained in the custody of the functionary or department by which they are required to.be kept, and are so retained for the express purpose of making them permanent and primary evidence of the transactions of the Government. (1 Greenl. on Ev., Sec. 483 et sequens.) Such a record can under no circumstance be called secondary or subordinate evidence, for there is and can be, from the very nature of the case, no higher evidence of the facts which it recites. “ Book A of Original Grants,” if kept in conformity with law, is not, as evidence, subordinate to the paper which was given to the grantee. The most that can be claimed for the latter is an equality of rank, because it, too, bears the official stamp. If, however, any distinction can rne recora so Kept became an omcia^sgira public recora of the transactions of the Alcaldes in the matter of granting town be drawn between them on the score of rank, the higher *510degree must be accorded to the record, because it contains the first and more formal and complete instrument, denominated in Mexican law the “ Matrix,” so called because it is the original from which copies may be drawn.
This question arose in the case of Gregory v. McPherson, 13 Cal. 570. It is true that it arose in relation to a grant made by the Governor, but we apprehend, for the reasons already suggested, that no distinction can be made between grants of that character and those made by Alcaldes. On the score of being official or authentic documents, which is the ground of their admission as evidence, they stand on a level. In that case a certified copy of the grant signed by the Governor and countersigned by the Secretary of State, annexed to and forming a part of the expediente, in the archives of the Government, was offered in evidence, and one question was, whether the copy in the archives of the Government was to be regarded as primary or secondary evidence. Upon this question the Court said: “We are at a loss to know upon what ground such a document can be denied the weight of original evidence. It was made and signed and authenticated as a record by public officers in the discharge of public duties. The papers were retained in the custody.of appropriate public officers, for the purpose of proof—and the highest and most authentic proof—of their own action. The documents receive the stamp—and the most satisfactory stamp—of official authenticity. The signatures are made on it as on the paper sent out by the department. We cannot see why such papers should be called copies, or why, in the scale of proofs, they should stand in any subordinate relation to the paper handed to the grantee. If not counterparts or duplicates it would seem that the original paper is the record retained by the department as a part of its permanent records.”
In Downer v. Smith, 24 Cal. 114, a book entitled “Book No. 3,” being the official record of grants made by the Alcaldes of the Pueblo de San José de Guadalupe was offered in evidence under the same circumstances and for the same purpose for which “ Book A of Original Grants ” was offered *511in this case, and we held that it was a book of original grants and therefore entitled to admission as evidence upon that ground, as well as upon the further ground that it was declared to be competent evidence under the provisions of an Act to legalize certain records in the Recorder’s Office of the County of Santa Clara, of which “ Book No. 3 ” was one. •
That such is the rule does not seem to be seriously contested by counsel for appellants, but it is claimed that the official character of “ Book A of Original Grants ” is successfully impeached by the testimony in the case in relation to the manner in which it was kept.
, We agree with counsel that the testimony shows that the book was not kept in all respects strictly according to the regulations of the 14th of November, 1789. The reason why it was not is doubtless owing to the fact that the Alcaldes by whom it was kept, being citizens of the United States, were ignorant of the mode in which it was directed to be kept under the Mexican domination. Hence, guided by their knowledge of our system of private conveyancing and registration, they regarded the book as standing in the same relation to the paper delivered to the grantee in which the Register of Deeds in the office of a County Recorder stands to the conveyance therein recorded. They did not therefore in all cases enter the entire proceedings in the book and authenticate them in the manner intended by the regulations of 1789, but the first or original proceedings, so to speak, were delivered to the grantee and a copy or brief summary thereof entered in the book.
In view of this change, how stands the case? Does it follow, as contended by counsel for appellants, that the record of the Alcalde has become merely secondary evidence ? Upon what principle can such a result be affirmed ? It can only be upon the ground that it thereby ceased to be an official record of the transactions which it commemorates. But in that case, unfortunately for the argument, it does not become secondary evidence; on the contrary, in its fall it does not lodge at that point, but drops entirely out of sight. It ceases to be of'any *512value whatever as evidence, and can only serve as a memorandum to refresh the memory of the Alcalde or his Clerk. The question, then, is—Is Book A to be regarded as an official record, notwithstanding the innovations of the American Alcaldes ? If it is, the consequence necessarily follows that it is primary evidence, as we have already seen, simply because it is an official record.
As a matter of fact, aside from any rule of law, Book A is the record, and the only record, which was kept by the Alcaldes of San Francisco after the acquisition of the country by the United States. It is in that sense the foundation of a vast number of titles, and is of vast importance as evidence, if it can be regarded as evidence at all. Under such circumstances it ought not to be discarded as unofficial, and therefore worthless as evidence, except for the most cogent reasons.
Wherever Book A, as it sometimes does, contains a full copy of the paper which was delivered to the grantee, with the genuine signature of the Alcalde appended, there can be no good reason for holding that it has not been kept so far substantially in the manner required by the regulations of 1789. The mere fact that the entry may have been made after instead of before the paper which was delivered to the grantee would not vitiate the record as evidence, for the fact is an immaterial one, and performs no part in establishing the legal character of the entry. It is the fact that the entry is there, over the signature of the proper officer, upon which the authenticity of the entry depends under the regulations of 1789. Wherever, therefore, the entry is of the character under consideration we think it is official within the intent and meaning of those regulations, and therefore primary evidence of the grant which it recites.
Book A contains another class of entries, which do not contain a full statement of all the proceedings, but a summary of them sufficient to show that an application for a grant was made, and a grant made, and are made over the genuine signature of the Alcalde. The entry in this case belongs to this class. It is attested by the genuine signature *513of the Alcalde, and, so far as it goes, is therefore authenticated in the mode prescribed by the regulations of 1789. Shall it be denied the character of an official entry merely because it is not so full as it might have been—especially in view of the importance of it and the peculiar circumstances through which it falls short of what it ought to have been— and the further fact that it is unaccompanied by any suspicion of fraud? We think not. We think that such entries substantially accomplish the object of the regulations of 1789, in requiring a record book to be kept, and that they ought to be upheld by the Courts as official entries within the spirit of those regulations, and therefore primary evidence of the grants to which they refer.
Some stress is placed by counsel for appellants upon the fact that there is no proof, as they claim, of a delivery of the grant as alleged in the complaint, and we deem it proper to say what we have to say upon that subject in this connection.
We hold that the grant in this case was made in a manner not fatally repugnant to the regulations of 1789. Under those regulations there could be no delivery of the grant as entered in Book A. The only thing to be delivered was a copy, or if you please, an alias original, which was not given to the grantee in the sense in which we speak of the delivery of a private conveyance. It was not delivered to him because its delivery was necessary in order to give effect to the grant and vest in him the title to the lot. It was given to him merely in testimony of his right under the grant. We do not understand that the doctrine of delivery as applied by us to private conveyances has any application to grants made by the Government, either under the Mexican system or our own. We so intimated in Downer v. Smith, supra. We understand that the title under the grant vests the moment it has received the stamp of the last act required to completely authenticate the instrument, and that a delivery is not necessary. (Marburg v. Madison, 1 Cranch, 137; Lott v. Proudhomme, 3 Rob. La. R. 293; Lavergne's Heirs v. Elkins' Heirs, 17 La. R. 226.)
*514Suppose from any cause, after the entry in proper form of the proceedings in the book kept by the Alcalde, he should fail to deliver the paper to which the grantee is entitled under the regulations of 1789, could it be claimed with any show of reason that thereby the grant was defeated or made inoperative or void? We think not. If not, it follows that no delivery of such a paper need be shown.
In Lott v. Proudhomme, supra, a patent was issued by the General Land Office and sent to the Register of the Land Office in Louisiana. Subsequently the Commissioner of the General Land Office directed the Register not to deliver the patent, and it was accordingly withheld. Nevertheless, the patentee brought ejectment upon it, and on the foregoing state of facts the Supreme Court of Louisiana (Mr. Justice Bullar) said : “ Even admitting the right of the Commissioner of the General Land Office to cancel an entry and sale of public lands before the issuing of the patent, yet the moment the patent has passed the great seal it is beyond the power of the officers of the Government. It is true the'instrument in this case has been withheld, but we conceive that mere possession of the parchment does not affect the right of the patentee.” So it was held that a delivery of the patent was not necessary in order to vest the title in the patentee.
To the like effect is the case of Lavergne’s Heirs v. Elkins' Heirs, supra. In proof of title the plaintiffs produced the books of Spanish grants from the Land Office in New Orleans, in which was recorded a grant to their ancestors by the Governor of Louisiana. The grant was unsigned, yet the Court held it to be sufficient evidence of title in the plaintiffs. The cases of Enfield v. Permit, 8 N. H. 512, and the Proprietors of Enfield v. Day, 1 N. H. 520, are also to the like effect.
The claim of the appellants that the points which we have thus far considered have been determined in their favor in Rice v. Cunningham, 29 Cal. 492, is without any substantial foundation. In that case the foregoing points were neither made nor argued. There is a marked difference between this case and that. The entry of the Kittleman grant in Book A was *515not signed by the Alcalde in his own handwriting, but in the handwriting of Dunleavy, his clerk, and therefore not attested according to the instructions of 1789. For this reason, or some other, counsel for the plaintiff elected to treat the entry as only secondary evidence. To this view counsel on the other side could have no objection. Accordingly a foundation was laid for its introduction as secondary evidence, and it was offered as such. Under these circumstances it became a matter of no moment whether it came in as primary or secondary. Over that question there was no contest. Upon that branch of the case the controversy was confined to the question whether the plaintiff was bound to exhibit the entry to the jury as it appeared in the book. The entry had been cancelled by lines drawn across the body of the entry and the words “ not taken ” written in the margin. Counsel for the plaintiff claimed that they were entitled to use the entry without the marks and words of cancellation, alleging that they had been put there in fraud of the plaintiff’s rights, while the contrary was contended for by the other side. It was therefore entirely unnecessary for the purposes of the case that we should adopt a different theory. The real points of controversy could be settled upon the theory adopted by counsel, as well as upon any other. So we followed the lead of counsel and assumed for the purposes of our opinion, as they had for the purposes of the trial, that the entry in Book A was only secondary evidence of the grant upon which the plaintiff relied for a recovery. The only ground for saying that the ease is in point is as here' represented—a mere inference that so and so is the case because it is so assumed for the sake of the argument. Neither Courts nor counsel are bound by conditions which are merely assumed arguendo. To have gone outside of the case as presented by counsel and discuss a point not at all necessary to the purpose would have been to erect a windmill merely for the pleasure of running a tilt against it; for nothing could have been said upon the question which would not have been strictly obiter.
II. The only points made upon the exceptions to the *516instructions of the Court, not in effect already noticed, relate to the municipal tax and the infancy of the plaintiff at the time the grant was made.
(a) It has never been held, so far as we are advised, that the payment of the municipal tax by the grantee was a condition precedent to the exercise of the granting power. No such condition is imposed by the ..regulations of 1789, nor by any other to which our attention has been called. The grant was intended to be a gift, and not a sale, made for the purpose of encouraging new settlements. The money paid by the grantee was a tax or fee and not a price for the lot. The power was long exercised, so far as we are advised, before the tax was imposed, and when it was imposed we do not understand that it was intended to restrict in any sense the granting power as it had previously existed, but merely to authorize the Ayuntamientos to make a charge for the grant in the nature of a fee or tax, for the purpose of municipal revenue, not differing in any respect from other municipal fees or taxes. The tax was not heard of until nearly half a century after the Plan of Pitic was promulgated. It is first mentioned in the decree of Governor Figueroa of the 6th of August, 1834, (Dwinelle’s Colonial History of San Francisco, Addenda, p. 29,) which is entitled “A plan of ways and means to raise municipal funds for the Ayuntamientos of the Territory of Upper California.” In keeping with its title, the decree proceeds to establish a system of taxation and provides what shall be taxed and how much. The third on the list is “concessions for building lots,” and the Ayuntamientos are instructed to tax each concession a certain amount, according to the size of the lot. By the fourth item the Ayuntamientos are authorized to charge a dollar and a half for the use of such branding irons as may be filed for registration, and collect the same at the time of registration. By the sixth item they are authorized to charge the owner half a real for each head of cattle or sheep and two reals for each hog or pig slaughtered for the public supply or market. So on to the end.
Now, suppose the officer whose business it was to register *517the branding irons should fail to collect the fee or tax, would the registry thereby become null and void for the uses and purposes, whatever they may have been, for which it was intended ? Or suppose an owner of cattle, sheep or hogs should slaughter one of them for the public supply or market without having first paid the tax, would the steer, sheep or hog, if sold to customers, be any the less their meat ?
In many counties of this State the county officials are paid salaries for their services, but are required to charge certain fees and pay the same over to the County Treasurer for the use of the Gfovernment. Now suppose a Recorder should record a deed without charging and collecting the fee therefor, would the record thereby become as if it "were not and fail to impart constructive notice to subsequent purchasers and encumbrancers ? Or suppose the Clerk should enter a cause upon the docket without having collected the docket tax levied for the purpose of paying in part the Judge’s salary, would the action become no action and the judgment void and of no account for any purpose ? We apprehend not. No distinction can be made between the case in hand and those referred to in illustration. They stand upon the same level, and the payment of the tax or fee for the concession of a house lot is no more a condition precedent than the payment of either of the others, and its non-payment did not operate to defeat the grant.
That such was the understanding of the Mexican officials before the conquest of the country by the United States is shown by a reference to the schedule of grants made by the municipal authorities of San Francisco between the years 1835 and 1846, and the accounts of Fuller, Syndic of San Francisco, between the years 1839 and 1842, (Dwinelle’s Colonial History, Addenda, p. 75-113,) where it appears that grants were made and the tax collected afterwards the same as in the case of other municipal taxes.
We are satisfied that the payment of the tax was a matter of no consequence so far as the validity of the grant was concerned, and that the plaintiff was not bound to prove that it *518was paid, nor were the defendants entitled to prove that it was not.
(b) The only reason urged in support of the proposition that the plaintiff, being an infant, could not take under the grant, is' that it was not the policy of the Mexican Government to make grants of town lots to infants, because they were incapable in law of taking upon themselves the performance of conditions subsequent.
We do not deem it necessary at this late, day to go into a critical examination of what the policy of the Mexican Government in this matter was, or whether that policy would or would not have been subserved by making grants of town lots to infants. We know that the Mexican nation did make grants of land to infants in other cases, and we know of no positive prohibition in cases like the present. Concede the incapacity of infants to make binding contracts, it does not follow that they could not or would not perform them. They might perform the conditions themselves, or others might. The only consequence of a non-performance was a possible forfeiture of the estate. Even adults were not bound to perform them in the sense that they could be made to do so. It was a matter resting entirely with themselves whether they would improve the lot or not. They might or might not; and so might an infant. If not, the Government had its remedy by denouncement in the latter case as well as the former.
Judgment and order denying a new trial affirmed. •
Mr. Justice Shafter, being disqualified, did not participate.