I agree with my associates in holding that the entry in “ Book A of Original Grants ” is primary, and not secondary evidence, in the sense of the rule relating to the subject. It is not a copy, and does not purport to be a copy, of any act or instrument between private parties, but is an *519official record of the acts of a public officer—of his own acts— made by him in the performance of his ordinary public duties. It is as clearly a record as the book of accounts kept under the direction of the same officer, held to be admissible in evidence in Kyburg v. Perkins, 6 Cal. 674. The fact that the Alcalde, in making grants, also issued and delivered to the grantee a more formal instrument, which was regarded as the grant, does not affect the character as original evidence of official entries like the one in question. But, in my judgment, for the purposes of this decision, it is not necessary to hold—and I am not prepared to take the extreme view—that the entry in question is the grant, and that, as such, by virtue thereof the title vested the moment the entry was completed and signed in the book, without delivery of any document to the grantee, or further act on his part, or on the part of the Alcalde. If it were necessary to so hold, I should be compelled to dissent from the judgment. It is very clear to my mind, from an inspection of the entry in question and the other entries in the book, that it was not kept in the mode prescribed by the instructions of the King of Spain of November 14th, 1789, usually known as the “ Plan of Pitic.” It clearly appears by the evidence in this case, as it has also appeared in many other cases before brought to this Court, that, from the time of the conquest, the Alcaldes of San Francisco, who were appointed under the authority of the Government of the United States, in practice, adopted and followed a system,which very materially modified the practice before existing, if that practice was in accordance with the “ Plan of Pitic.” This undoubtedly resulted from the fact that those officers, and the inhabitants who immediately flocked in and displaced or overwhelmed the old population, had been educated under an entirely different system, with different ideas, and were wholly ignorant of the system of the civil law, which system, in its details, was not merely not comprehended by the newcomers, but was almost incomprehensible to them. This departure from the Mexican law was not merely the mistake of an individual, but of a whole community; and it was *520not confined to the making of grants by Alcaldes, but it extended to conveyances and many other transactions. The new inhabitants doubtless followed the Mexican usage, so far as they understood it, and substituted their own ideas where they did not. The idea entertained by the Alcaldes of San Francisco appointed .subsequent to the conquest, was, that, not merely a registry of the fact of a grant having been made, but a delivery of a formal grant to the grantee, was necessary to constitute a grant and vest a title. They never for a moment supposed a grant took effect till an actual delivery. And their practice from the beginning was in accordance with this idea. The practice for a time was, when a grant was applied for, to make out the grant, sign it, make the entries upon the register, and deliver it to the Syndic to collect the fees, and, upon their payment, deliver the grant to the grantee. In case the petitioner declined to take it, or refused or neglected to pay the fees, the grant wa^ destroyed, and the entry in “Book A” cancelled. In the practice adopted and pursued at San Francisco it was not at any period since the conquest intended by the Alcalde making the grant, that the grant should take effect until the delivery, nor was it supposed by them, or by the parties applying, that it did take effect, or that the transaction was complete till payment of the fees and actual delivery. The proceeding was intended to be, and was regarded by all parties, officers and people, as in fieri, and under the control of the Alcalde till payment and delivery ; in other words, that there was no grant till the final act of delivery. The testimony shows that this vras the practice, and that there are numerous instances of the cancellation by the Alcaldes of the entries of non-delivered grants, and the destruction of the instruments prepared for delivery, which had not been paid for and taken by the applicant. At times the Alcaldes would give public notice that grants thus prepared and entered must be taken out and the fees paid before a designated day, or they would be cancelled, and the cancellation took place in pursuance of these notices. There were some thirty or forty of these entries having the signature of *521Hyde’s predecessor—the grants corresponding to these entries having been turned over to Hyde by his predecessor—can-celled by him in this manner. And all this was done in pursuance of the intentions and practice of the Alcaldes, and the understanding of the people, that a grant would not become effectual, or vest any title till a delivery. Subsequent grants of the same lots to other parties were made upon the idea that the title still remained in the pueblo, and a large number of these lots situate in the heart of the City of San Francisco of the present value, doubtless, of several millions of dollars, are now held under such subsequent grants. If a title once vested by virtue of the entry and signature of the Alcalde, I do not perceive how it could be divested by a mere subsequent cancellation of the entry. To hold that a title vested the moment the entry was made and signed in " Book A,” without a delivery, when such a result was not intended or contemplated by the granting power, or the parties interested, under the practice adopted, would be to overturn all these subsequent grants, and give the property in its present condition of enhanced value resulting from twenty years improvement and expansion of the city, to parties who never themselves claimed, or supposed they had, or were ever supposed by anybody else to have had, any title whatever. Nothing short of a positive law, clearly shown beyond reasonable doubt to be in full force, should be permitted to work such results. Conceding the effect claimed for a record of a grant made, and intended to be made, in strict accordance with the “ Plan of Pitic,” we have seen that this record, and the practice under which it was made, were not in accordance with that plan. The Mexican law yielded much more readily .to the force of practice! and custom than the common law. “ In Mexican jurisprudence, as in that of other countries, custom is sometimes allowed not only to control, limit, modify and interpret the: general rules of the system, but even to establish a rule im direct and palpable contravention of the positive written law. It is the teaching of the books that custom may attain the *522force of law, not only where there is no law to the contrary, but when the effect of it is to overturn the previous law which stands in opposition to it—whence arises the maxim that there may be a custom without law, a custom contrary to law, and a custom according to law.—Escriche Derecho Español, 23, 24; Escriche, Dic., Title Costumbre; 1 Feb. Mej. 55 to 61.” (Von Schmidt v. Huntington, 1 Cal. 64; Panaud v. Jones, Ib., 488; Castro v. Castro, 6 Cal. 160-61; Tevis v. Pitcher, 10 Cal. 477; see, also, United States v. Fremont, 17 How. 557.) I think it clearly .appears in the case that there was a practice inaugurated in respect to the mode of granting and registering grants of lots in San Francisco different from that contemplated in the “ Plan of Pitic ” as early, at least, as ’ the administration of the first Alcalde appointed under the authority of the United States, under which a grant was not deemed completed, so far as to vest a title in the grantee, till its delivery; and that this plan was thenceforward acted upon, and that it has been regarded as valid from that day to this. Undoubtedly, in point of fact, all subsequent grants down to and including the numerous grants made in pursuance of auction sales under Alcalde Geary went upon this theory—that is to say, the entire real estate of the City of San Francisco held under Alcalde grants, except the very few concessions made before the conquest, if any such exceptions there be, were granted under the practice, and under the idea, that the grant did not take effect until a delivery. At all events, upon the case disclosed by the record, we are not authorized to say that a valid custom to this effect had not so far grown up as to have the force of law. In Rice v. Cunningham the case was tried on the theory that a delivery was necessary to constitute a grant. This was the real question litigated in the Court below, and the Court so charged the jury; and the charge in this respect was not questioned on appeal. It is true that the entry of the grant in “ Book A,” in that case, was made by the Clerk, as was sometimes the case, and not signed by the Alcalde on the record, although his signature appeared to be copied into the record by *523the Clerk. But this was the only record there was, and the question litigated was as to the delivery. I am not aware that it has ever before been seriously contended that the title vested under Alcalde grants in San Francisco, from the moment the entry in “ Book A” was made and signed by the Alcalde, and before the delivery of the .formal grant, of which a copy, or synopsis, as the case might be, constituted the entry. The case of Downer v. Smith was decided upon a different state of facts, and different practice, which seems to have prevailed at San José; which was also recognized and aided by statutory provisions. It has no application to this case. With all deference to the opinion of my brethren, founded, as it is, upon a very careful and thorough examination of the question, I cannot concur in the view that this grant was substantially made and registered in pursuance of the “ Plan of Pitic,” or that it became a grant and vested a title as soon as the entry was made and signed by the Alcalde in “Book A,” without the delivery of a corresponding title. Under the views I entertain, it is unnecessary to determine this question ; but I do not feel at liberty, without indicating my dissent, to permit the announcement of a conclusion which, in my opinion, tends to a confiscation of, or, at the least, to unsettle the titles to, a large portion of the real estate in the City of San Francisco.
But the conclusion to which my mind is forced on the point discussed does not militate against the character of “ Book A of Original Grants” as evidence. It was still a public record of the official acts of the Alcalde. It recorded the fact that he had, as Alcalde, made a grant. It was a record of his own official action over his own signature. It was not a copy of the act of some other party. It was primary evidence or no evidence at all. I think it properly admitted.
For the purposes of this decision I assume, as the District Judge did on the trial below, that, under the practice pursued at the time, a delivery was necessary to constitute a grant and pass a title. The entry in Book A, as we have-already seen, was properly admitted. The evidence, I think, was sufficient *524to justify the submission of the case to the jury. The remaining questions' arise on the instructions given and refused. At the request of the defendant the Court instructed the jury as follows: “ Unless therefore you are satisfied from the evidence before you that the grant was -by the Alcalde executed and delivered to the plaintiff, or to some one for him, you should find for the defendant.” And again the Court of its own motion gave the following instruction : “ If you find from the proofs that George Hyde, on the 19th day of July, 1847, was the Acting Alcalde of the Town of Yerba Buena, now City of San Francisco, and that in his official capacity as such Alcalde he made a grant to the plaintiff of the lot in question, and evidenced said grant. by entering, recording and certifying the same over his genuine signature as such Alcalde, in a book of entries and records of town grants, officially kept at the time in the Alcalde’s office for that purpose, you may not only presume a previous application by the plaintiff, or some one for him, for such grant, but in addition, further, you may presume the same was made and duly delivered, unless the evidence satisfies you to the contrary. In case of such making and delivery, the plaintiff will be entitled to recover. But if you do not find the making and delivery of such grants in manner before stated, then your verdict will be for the defendants.” The part of the charge complained of, is that portion, which, upon the facts assumed, says, an application may be presumed, and that “ you may presume the same (the grant) was made and duly delivered, unless the .evidence satisfies you to the contrary.” There was a clean entry in “ Book A of Original Grants,” signed by the Alcalde in person, showing that he had made a grant. It was without any marks of cancellation upon it. This, although, as I think, under the system adopted, and then in use, it did not constitute the grant itself, was an official record of the fact that a grant had been made. There was evidence showing a practice of cancel-ling those entries made before the delivery of the grant, where the grant was, for any reason, as non-payment' of fees, not delivered. This was not cancelled in accordance with *525such practice, but the record was passed over by the Alcalde making the entry to his successor, and finally transferred to the Recorder’s office under subsequent statutes of the State of California as an authentic final public record of grants made. The instruction was given with reference to the testimony in the case, and I think, unless there was other testimony to rebut the presumption, the jury were justified in presuming the record in the state in which it was presented to be a correct, complete and final record of the acts of the Alcalde with reference to this lot, and that the grant had been delivered. There was other evidence given tending both to overthrow and support the presumption. There was the evidence of Alcalde Hyde himself as to his recollection and practice—evidence on the question of payment of fees as bearing upon the question of probable delivery or non-delivery of this grant; and in this connection the evidence with reference to the payment of fees was, in my view, admissible. This evidence with reference to the delivery was submitted by the Court upon the question of delivery when the jury were told that they might presume a delivery from the facts assumed, if found proved, unless the evidence satisfied them to the contrary. And, in immediate connection with this instruction, the jury were again told, that if they did not find a making and delivery of the grant, they must find for defendants. Some criticism has been made by counsel for appellants upon the language of the instruction, tending to show that upon a critical analysis it is obscure and would tend to mislead,the jury. I do not think the jury could have misapprehended the idea designed to be conveyed, or that the charge as it would necessarily be understood is erroneous. Perhaps something might have been properly and advantageously said upon the bearing of the other evidence on the question of delivery, but no instruction upon this part of the testimony was asked. Although I have not attained this conclusion* without some hesitation, I think there was no error in the instruction given.
*526The instructions asked by defendants and not given were properly refused for reasons stated in the leading opinion.
I concur in the judgment of affirmance.