124 U.S. 261 (1888)


Supreme Court of United States.

Decided January 23, 1888.

Attorney(s) appearing for the Case

Mr. W. Hallett Phillips for plaintiffs in error. Mr. John Hancock and Mr. S.R. Fisher were with him on his brief.

Mr. John Ireland for defendants in error submitted on his brief.

MR. JUSTICE MATTHEWS, after stating the case, delivered the opinion of the court.

The precise point ruled by the Circuit Court in rejecting the evidence offered by the plaintiffs was that the documents, including the deed to Garcia, notwithstanding their recitals, failed to establish even prima facie any transfer of Losoya's title, to effect which it was necessary to prove by other evidence a lawful confiscation of his estate. This ruling is assigned for error on the ground, contended for by counsel for the plaintiffs in error, that the documents referred to, according to the laws prevailing in the locality at the time of their execution, were sufficient, with the aid of presumptions supplied by that law, to establish in the first instance the truth of the facts recited and on the basis of which alone the proceedings could be lawful, including the principal fact of a lawful confiscation of the estate of Miguel Losoya.

The contention on the part of the plaintiffs in error is stated by counsel, furnishing an opinion to that effect from Señor Emilio Velasco, an eminent lawyer of the city of Mexico, as follows:

"The documents upon the confiscation and sale are, therefore, authentic documents, and in their whole contents are entitled to full faith and credit. Thus, when the governor of Texas affirms in them that, by order of the commanding general, the property was confiscated, the affirmation is entitled to full faith and credit. A direct proof by the introduction of a certified copy of the order of confiscation issued by the commanding general would undoubtedly have been proper; but if it is not in existence the facts are sufficient proof that it did in fact exist:

"I. The inventory made by Captain Don Francisco del Prado y Arce, October 27, 1814, states that the said property was confiscated by order of the commanding general, Brigadier Don Joaquin de Arredondo. From the tenor of that document it is to be deduced that the said Prado y Arce held the character of depositary (custodian) and administrator of the confiscated property, and, consequently, when stating in the inventory that the confiscation had been done by the order of the commanding general, he affirmed a fact connected with the exercise of public functions and on account of which he exercised these same functions.

"II. The governor of Texas forwarded to the intendant of San Luis Potosi the inventory established by Captain Prado y Arce, and in his communication he stated that the property had been sequestered from the insurgents who, in 1811, took part in the revolution in Texas. The governor of Texas proceeded in the confiscation business in the exercise of the functions intrusted to him by law. When forwarding the inventory to the intendant of San Luis Potosi he accepted its contents and assumed the responsibility thereof, consequently it results from the documents authenticated by the governor of Texas that, in consequence of having taken part in the insurrection which occurred in Texas in 1811, the property of Miguel Losoya was confiscated by the order of the commanding general. Brigadier Don Joaquin de Arredondo.

"III. The opinion of Don José Ruiz de Aguirre, the `asesor' [of the] intendancy of San Luis Potosi, and the decree of the intendant, Don Manuel de Acevedo, in which he concurs in the opinion, are, as stated by the governor of Texas, in the beginning of his statement of September 19, 1817, founded on the fact that the confiscation of the property was effected by the order of the commanding general of the eastern provinces. As will subsequently appear, both the intendant and his `asesor' were judges, and in these cases acted as judges; there is reason, therefore, for affirming that, by a judicial resolution (judgment), it was declared that the property had been confiscated by the order of the commanding general, and that the report of the governor of Texas was considered a sufficient foundation for this declaration.

"IV. Finally, in the `asesor's' opinion and in the decree of the intendant of San Luis Potosi, it was directed that a report of the decision of these functionaries should be made to the commanding general. It further appears that this decree was complied with, and there is no evidence whatever that the commanding general denied the correctness of the report made by the governor of Texas.

"These several reasons admit of no doubt that the confiscation was effected by order of the commanding general; and authorizes the affirmation that it was done by a judicial resolution by a competent authority. It was so declared; therefore this point cannot be questioned."

In support of this conclusion counsel cite also the declarations of this court in cases supposed to be similar, and reference is made to that of the United States v. Arredondo, 6 Pet. 691. That case related to the validity of a Spanish grant of title to lands in Florida as affected by the treaty between Spain and the United States of 1819, and the question was as to the effect of the documents in evidence to show a grant of its own public lands by the Spanish government, entitled to be recognized as valid under the treaty with this country. Speaking to that point, this court said (p. 727): "It is thus clearly evidenced by the acts, the words, and intentions of the legislature that, in considering these claims by the special tribunals, the authority of the officer making the grant or other evidence of claim to lands formed no item in the title it conferred; that the United States never made that a point in issue between them and the claimants to be even considered, much less adjudicated. They have submitted to the principle which prevails as to all public grants of land, or acts of public officers in issuing warrants, orders of survey, permission to cultivate or improve, as evidence of inceptive and nascent titles, which is, that the public acts of public officers, purporting to be exercised in an official capacity and by public authority, shall not be presumed to be a usurped but a legitimate authority, previously given or subsequently ratified, which is equivalent. If it was not a legal presumption that public and responsible officers, claiming and exercising the right of disposing of the public domain, did it by the order and consent of the government, in whose name the acts were done, the confusion and uncertainty of titles and possessions would be infinite, even in this country; especially in the States whose tenures to land depend on every description of inceptive, vague and inchoate equities rising in the grade of evidence by various intermediate acts to a full and legal confirmation by patent under the great seal... . Without the recognition of this principle there would be no safety in title papers, and no security for the enjoyment of property under them. It is true that a grant made without authority is void under all governments, (9 Cranch, 99; 5 Wheat. 303,) but in all the question is on whom the law throws the burden of proof of its existence or nonexistence. A grant is void unless the grantor has the power to make it; but it is not void because the grantee does not prove or produce it. The law supplies this proof by legal presumption arising from the full, legal, and complete execution of the official grant, under all the solemnities known or proved to exist, or to be required by the law of the country where it is made and the land is situated... . This or no other court can require proof that there exists in every government a power to dispose of its property; in the absence of any elsewhere, we are bound to presume and consider that it exists in the officers or tribunal who exercise it by making grants, and that it is fully evidenced by occupation, enjoyment, and transfer of property had and made under them, without disturbance by any superior power, and respected by all coördinate and inferior officers and tribunals throughout the State, colony, or province where it lies. A public grant, or one made in the name and assumed authority of the sovereign power of the country, has never been considered as a special verdict, capable of being aided by no inference of the existence of other facts than those expressly found or apparent by necessary implication; an objection to its admission in evidence on a trial at law or a hearing in equity is in the nature of a demurrer to evidence on the ground of its not conducing to prove the matter in issue. If admitted, the court, jury, or chancellor must receive it as evidence both of the facts it recites and declares, leading to and the foundation of the grant, and all other facts legally inferable by either from what is so apparent on its face... . The validity and legality of an act done by a governor of a conquered province depends on the jurisdiction over the subject matter delegated to him by his instruction from the king and the local laws and usages of the colony, when they have been adopted as the rules for its government. If any jurisdiction is given, and not limited, all acts done in its exercise are legal and valid; if there is a discretion conferred, its abuse is a matter between the governor and his government, &c. King v. Picton, late Governor of Trinidad, 30 St. Tr. 869-871. It is a universal principle that where power or jurisdiction is delegated to any public officer or tribunal over a subject matter, and its exercise is confided to his or their discretion, the acts so done are binding and valid as to the subject matter; and individual rights will not be disturbed collaterally for anything done in the exercise of that discretion within the authority and power conferred. The only questions which can arise between an individual claiming a right under the acts done and the public, or any person denying its validity, are power in the officer and fraud in the party. All other questions are settled by the decision made or the act done by the tribunal or officer; whether executive, (1 Cranch, 170, 171,) legislative, (4 Wheat. 423; 2 Pet. 412; 4 Pet. 563,) judicial, (11 Mass. 227; 11 S. & R. 429, adopted in 2 Pet. 167, 168,) or special, (20 Johns. 739, 740; 2 Dow P.C. 521,) unless an appeal is provided for or other revision by some appellate or supervisory tribunal is prescribed by law."

The same principles were applied in the case of Strother v. Lucas, 12 Pet. 410, and have been uniformly recognized by the Supreme Court of Texas in dealing with claims of title based on the official acts of the public authorities of the preceding governments of Mexico and Spain. Jones v. Muisbach, 26 Texas, 235.

But in all these cases the question was whether the documents, with the recitals therein, and the presumptions of law and fact arising thereon, shown to have been executed by officers of the government, within the apparent scope of their authority, were sufficient in the first instance to show that the title of the government assumed by them to exist passed by the conveyance which undertook to transfer it. In no case, however, have they been held sufficient, where the fact in issue was whether the government at that time had any title to convey, to establish the fact in dispute, as against parties claiming a preëxisting adverse and paramount title in themselves. All that can be reasonably or lawfully claimed as the effect of such documents of title, is that they pass such estate, and such estate only, as the government itself, in whose name and on whose behalf the official acts appear to have been done, had at the time, but not to conclude the fact that the estate conveyed was lawfully vested in the grantor at the time of the grant. This is the doctrine declared by this court in the case of Herron v. Dater, 120 U.S. 464. In that case it was sought to give effect to a recital in a patent from the State of Pennsylvania as against the party who at the date of the patent was shown to have a title good as against the State. It was said by the court (p. 478): "Clearly that recital was not evidence against the plaintiffs, for if the patent could not take effect against them without it, it could not give any effect to that recital. Their right had already vested prior to the existence of the patent, and the grant to them could not be affected by a subsequent grant to a stranger." So in the present case, the question is not whether the title which the King of Spain had to the lands in controversy passed by the documents in question to Garcia, but whether at that date the King of Spain had the title which they purport to convey.

The law on this subject was stated by this court in its opinion delivered by Mr. Justice Story in Carver v. Astor, 4 Pet. 1, 83, as follows: "It is laid down generally that a recital of one deed in another binds the parties and those who claim under them. Technically speaking, it operates as an estoppel, and binds parties and privies — privies in blood, privies in estate, and privies in law. But it does not bind mere strangers, or those who claim by title paramount the deed. In does not bind persons claiming by an adverse title, or persons claiming from the parties by title anterior to the date of the reciting deed. Such is the general rule. But there are cases in which such a recital may be used as evidence even against strangers. If, for instance, there be the recital of a lease in a deed of release, and in a suit against a stranger the title under the release comes in question, there the recital of the lease in such release is not per se evidence of the existence of the lease. But if the existence and loss of the lease be established by other evidence, there the recital is admissible as secondary proof, in the absence of more perfect evidence, to establish the contents of the lease; and if the transaction be an ancient one, and the possession has been long held under such release, and is not otherwise to be accounted for, there the recital will of itself, under such circumstances, materially fortify the presumption from lapse of time and length of possession of the original existence of the lease."

So in United States v. Ross, 92 U.S. 281, this court, speaking by Mr. Justice Strong on this point, said (p. 284): "Because property was captured by a military officer and sent forward by him, and because there is an unclaimed fund in the treasury derived from the sales of property of the same kind as that captured, because omnia præsumuntur rite esse acta, and officers are presumed to have done their duty, it is not the law that a court can conclude that the property was delivered by the military officer to a treasury agent, that it was sold by him, and that the proceeds were covered into the treasury. The presumption that public officers have done their duty, like the presumption of innocence, is undoubtedly a legal presumption, but it does not supply proof of a substantive fact. Best, in his Treatise on Evidence, § 300, says: `The true principle intended to be asserted by the rule seems to be, that there is a general disposition in courts of justice to uphold judicial and other acts rather than to render them inoperative; and with this view, where there is general evidence of facts having been legally and regularly done, to dispense with proof of circumstances, strictly speaking, essential to the validity of those acts, and by which they were probably accompanied in most instances, although in others the assumption may rest on grounds of public policy.' Nowhere is the presumption held to be a substitute for proof of an independent and material fact."

It is contended, however, by counsel for the plaintiffs in error that the validity and effect of the documents under consideration must be tried by the system of law in force in the locality at the time of the transactions, and that, by reference to the Spanish law in force at the time in Mexico, the documentary evidence offered was sufficient to establish prima facie the title of Garcia as legitimately derived through a confiscation and sale of the property of Miguel Losoya.

By that law, as it appears, among the cases of treason the following is enumerated; "The third is, if any one induce, by deed or advice, a country or people, owing obedience to their king, to rise against him, or not to obey him as well as they formerly did." (Ley 1, tit. 2, partida 7; Law 5, tit. 32 of the Ordenamiento de Alcula; Recopilacion, Ley 1, tit. 8, 18 lib. 8.) "The punishment of death and confiscation of property is inflicted upon persons guilty of this crime." (L. 2, tit. 18, lib. 8, Rec., 1 White's New Recopilacion, 255.)

It is admitted that, by the provisions of the Spanish law in force at the time, confiscation of property as a punishment for the crime of treason could only be effected by regular judicial proceedings. The text cited on that point is Ley 4, tit. 7, lib. 12, of the Novisima Recopilacion, as follows: "It is not our will that such persons should forfeit their property and offices without having first been heard and found guilty, and let the laws of our kingdom be observed in such case, unless their treason or evil deed be notorious." The authority of the king to take cognizance of cases of confiscation as a punishment for treason was entrusted in the Spanish colonies to other functionaries designated for the territory of New Spain, which subsequently became the Mexican Republic, in the Real Ordenanza, or Royal Ordinance, for the establishment and instruction of the army and provincial intendants of the kingdom of New Spain, December 4, 1786. It is to Article 82 of this Ordenanza that the `asesor,' Josef Ruiz de Aguirre, refers as the ground for recommending the sale of the property in question in one of the documents offered in evidence.

The following summary of the provisions of the Ordenanza bearing on that point is taken from the opinion of Señor Emilio Velasco furnished by counsel for the plaintiffs in error, and to which reference has already been made:

"In Article 1 of the Ordenanza twelve intendancies were established, one of which was that of San Luis Potosi. In Article 7 it was provided that the alcalde mayor, or corregidor (chief alcalde or corregidor) of San Luis Potosi should be united with the intendancy established in its capital and province. For this reason, in the procedure of confiscation, the title of the intendant corregidor of San Luis Potosi is assumed. This government by intendants continued until the independence of Mexico. (Hall's Mex. Law, § 16.)

"The intendants were very high functionaries in the colony. The king reserved to himself their appointment (see end of Article 1). Their functions were various and of very different nature from each other. In Article 7 it was ordered that they should take charge of the Departments of Justice, of Police, of Finance, and War. Each of these departments embraced highly important business of various kinds, minutely mentioned in the Ordenanza.

"Article 10 provides that the civil and military governors, among them the governor of Texas, should subsist. These governors still retained cognizance of judicial and police matters, together with the military command of their respective territories and matters pertaining to the Departments of Finance and War. The same article, at its close, provided that the intendants should appoint as their sub-delegates the said governors within the territories of their respective commands.

"Article 77 also says, in order that the mandates of the intendants be complied with in relation to this matter (the Department of Finance) and to that of War, ... they shall appoint ... sub-delegates only for matters of controversy connected with these two branches, it being understood that in the capitals and the districts of the ... government the said sub-delegate shall be attributed to the governors themselves as is provided in Article 10.

"In the same Ordenanza, the matter of the Department of Finance is included, in Articles 75 to 249, and, among them, Article 82 is included. This article refers to confiscation which, therefore, belonged to the Department of Finance, in which the governor of Texas acted as sub-delegate of the intendant; and, on this account, it is to be observed, in the procedure of the confiscation of Losoya's property, that the governor applied to the intendant of San Luis Potosi for instructions, and acted according to the orders of the latter. As said before, the functions of the intendants were various. The whole administration of the Department of War was entrusted to them; that which referred to taxation and fiscal property also pertained to them; they were the superior authority in the Department of Police; and, finally, they were judicial authorities.

"In this latter capacity their functions were exceedingly comprehensive. The intendants were Chief Justices in their provinces, and were entrusted with the jurisdiction which formerly belonged to the corregidores and chief alcaldes (Art. 11). Article 21 specifies the laws to which, in the administration of justice, they ought to subject themselves. Articles 22 and 23 confer upon them the power of supervision and vigilance over the other justices of the province.

"Each intendant should have a `Teniente Letrado' — a deputy versed in law. The powers of this `Teniente Letrado,' as a judicial functionary, had a dual character (Art. 15). By himself, in civil and criminal cases, he exercised contentious jurisdiction; in this point of view he was independent of the intendant's court, and his sentences were appealed from before the audiencia (Art. 19). But, besides this, he was `asesor' (adviser) of the intendant; in this capacity all the intendancy's business, whether administrative or judicial, wherein a legal question was involved, was referred to him for his opinion to enable the intendant to act. In this point of view the `asesor' was an integrant part and parcel of the intendancy's court. For this reason in the procedure relating to the confiscation of Miguel Losoya's property the intendant, Don Manuel de Acevedo, called for the opinion of the `asesor,' Don José Ruiz de Aguirre."

Article 82 of the Ordenanza provides as follows:

"In cases of confiscation of property situated in their provinces (those under an intendant) and of which a viceroy, the commanding general of the frontiers, the audiencias, or other tribunals have cognizance, they (the intendants) ought not to intervene without a special permission or trust from them (the viceroy, the commanding general, the audiencia or other tribunal) while the said property is kept sequestered; but, if the same come to be confiscated by a sentence ordered to be executed, it shall be the special duty of the intendant to proceed to the alienation thereof, and the collection of the proceeds, and also to take cognizance of all claims and controversies subsequently arising upon the confiscated property."

It is argued from this and the other provisions of the Ordenanza that the commanding general of the frontiers had the right in the matter of confiscation to take cognizance and pronounce sentence, not only as acting in the exercise of his military command, but as in charge of civil administration as a tribunal of justice; it being his duty in this matter to follow the procedure established by law, and to exercise the powers which the king himself exercises in the metropolis. It therefore pertained to him to inquire whether or not the crime was notorious, in order that he might pronounce sentence of confiscation without an actual hearing of the accused. In the proceedings relating to the confiscation of Miguel Losoya's property it is stated that "the commanding general of the eastern provinces" confiscated this property. The intendant corregidor of San Luis Potosi, and his `asesor,' recognized him as such. It is, therefore, inferred that the commanding general of the eastern provinces was a commanding general of the frontiers, in the sense of Article 82 of the Ordenanza, and consequently had power to take cognizance of matters of confiscation.

Article 78 of the Ordenanza is also referred to. It reads as follows:

"As to what pertains to the exercise of contentious jurisdiction in the proceedings and business of my revenue, the intendants shall take special and exclusive cognizance, with inhibition of all magistrates, tribunals, and audiences of that kingdom... . They shall also act in all causes in which any interest may accrue ... to my royal exchequer, or which may pertain to any of the branches or rights thereof under administration or in lease, both in respect to collection and to all matters incident thereto."

From this it appears that, confiscation once declared, the property belonged to the fiscal, and, therefore, as property in which the royal exchequer held an interest, it remained subject to the exclusive jurisdiction of the intendants, both in ordering the sale and for taking cognizance of controversies raised concerning it. According to Article 77, the military governors were sub-delegates to the intendant, and subordinate to him in authority, and their powers, in reference to the two branches of administration included under the head of finance and war, extended only to the institution of proceedings by them until they were placed in a position for final adjudication, when their proceedings were required to be forwarded to the intendant of the province for his decision, in concurrence with his `asesor.'

In the present case it is shown by the documents that the governor of Texas instituted the proceedings in the condition in which the confiscated property was in 1817. The purpose of this procedure was to effect the sale of the property as confiscated. Under Article 77 it pertained to him to institute it; but the sentence that had to be pronounced, as to whether or not it must be sold, whether or not there was a legal cause for sale, and whether or not the condition of the property was such as to require a sale, was a judgment which could only be pronounced by the intendant after having heard his `asesor.' The intendant and his `asesor,' therefore, in the determination of this point, were called upon to inquire whether the confiscation was legal, or, in other words, whether a competent authority had ordered it. In the present case, as appears by the documents, the intendant and his `asesor' assumed that the commanding general of the eastern provinces had made the confiscation; they considered as sufficient proof of that fact the statement contained in the proceedings instituted by the governor of Texas. It is thence inferred and argued that their decision in this case, directing the sale of the property, was the exercise of jurisdiction in a judicial capacity, wherein they were required to examine and settle the proofs of the existence of the fact of confiscation, and that, therefore, the order directing the sale adjudged the fact and the legality of the confiscation, without which that sale could not have been authorized. It is thus sought to give to the recitals contained in the documents the force of a judicial determination operating as conclusive evidence of the fact supposed to be contained in it.

It will be observed, however, that this reasoning in regard to the probative force of the documents in question does not rest upon any positive provision of the Spanish law then and there in force giving that effect to such recitals. The only positive provision on that subject to which we are referred is that contained in Ley 1, tit. 18, partida 3, which says: "Every writing executed by the hand of a notary public of the council, or sealed with the king's seal, or with that of any other person having authority to affix his seal, is an authentic act (escritura) which is of itself full proof. From the faith given to these writings the greatest good arises; for they are the evidence of what has taken place, and full proof of the contract they contain." 1 Moreau and Carleton's Partidas, 222, tit. 18, law 1.

We do not, however, understand this provision as giving to such instrument any greater effect as evidence than similar documents have in our own law. They are proof, in solemn form, as ordained by the law, which defines the mode of their execution and preservation, of the transaction which they record and consummate. They certainly cannot be regarded as conclusive proof as to all persons, whether parties or not, of every fact to which they refer, or the existence of which seems to be implied.

In the present case, the documents in question declare that the property of Miguel Losoya is in the hands of public officers charged with its custody, as having been confiscated with that of others described as rebels, and regular and appropriate steps are officially taken to procure its sale as such. To justify the lawfulness of these proceedings unquestionably requires us to assume a prior and legal procedure against Miguel Losoya, resulting in the confiscation of his property for the alleged offence in accordance with existing law; but the legality of the procedure resulting in the sale of his property on the basis of that assumption is the very thing in question to be proved, and we are at last still confronted with the inquiry whether the absence of proof of the principal fact, on which the legality of everything succeeding it depends, can be supplied by a mere presumption.

In considering this question further, it is to be remarked that the documents under consideration do not even expressly recite that any judicial proceeding whatever was had against Miguel Losoya charging him with treason, that he ever had notice of such an accusation, or an opportunity to appear and defend against it; or, in the alternative, that his offence was found to be notorious, so as to dispense with any other notice than that given by the actual seizure of his property as the proper subject of confiscation. Nor in fact is it expressly stated that there had been any official seizure of the property for purposes of confiscation in any judicial proceeding. All these are the matters the existence of which we are asked to infer from the simple fact, which these documents do attest, that the property of Miguel Losoya was sold to Garcia by order of the intendant of San Luis Potosi, as though it had been regularly proceeded against and adjudged to be confiscated. In the absence of any positive provision of the local law to the contrary, we are bound to determine this question upon those principles of right reason and abstract justice which are recognized in our own system of jurisprudence. The presumption to which we are asked to resort for an answer to the question is, however, not peculiar to any system of law. It is found in the law of all civilized States, and the phrases in which the maxim is expressed are taken from the civil law, the basis of the jurisprudence of Spain as of all other European states, and imported into the common law of England as adopted by us. Omnia prœsumuntur rite esse acta is its familiar form, but as said by Mr. Best (Principles of Evidence, §§ 353, 361): "The extent to which presumptions will be made in support of acts depends very much on whether they are favored or not by law, and also on the nature of the fact required to be presumed." It does not apply to give jurisdiction to magistrates or other inferior tribunals; nor to give jurisdiction in proceedings not according to the common course of justice.

We are asked to assume that Miguel Losoya was guilty of the offence of treason against the King of Spain, and that he was so adjudged in regular judicial proceedings, on the basis of which conviction his property was officially seized and confiscated; and this we are asked to do as a judicial tribunal, sitting in a case wherein we are called to apply and administer the laws of Mexico, our government being the successor of that republic, as the republic was the successor of the Spanish government, in order to justify the taking of Miguel Losoya's property and transferring it to another for the sole offence on his part of assisting to achieve the independence of his own country, whose justice is now invoked against him. If we had before us an actual and formal decree of a competent tribunal adjudging him guilty of the offence, and confiscating his property in punishment therefor, that of itself would not be sufficient to establish its own validity. We should still require record evidence of the existence of those facts which brought him and his property within the jurisdiction of the tribunal pronouncing such a decree. "Wherever one is assailed in his person or his property," said this court in Windsor v. McVeigh, 93 U.S. 274, 277, "there he may defend, for the liability and the right are inseparable. This is a principle of natural justice, recognized as such by the common intelligence and conscience of all nations. A sentence of a court pronounced against a party, without hearing him or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal... . The jurisdiction acquired by the court by seizure of the res was not to condemn the property without further proceedings. The physical seizure did not of itself establish the allegations of the libel, and could not, therefore, authorize the immediate forfeiture of the property seized. A sentence rendered simply from the fact of seizure would not be a judicial determination of the question of forfeiture, but a mere arbitrary edict of the judicial officer." To the same effect is the case of Alexander v. Fairfax, 95 U.S. 774. The subject was very thoroughly examined by Mr. Justice Story in Bradstreet v. Neptune Insurance Co., 3 Sumner, 600. In that case, the question discussed had relation to the effect to be given to the decree and sentence of a foreign court of admiralty and prize in rem. The learned justice said (p. 608): "I hold, therefore, that if it does not appear upon the face of the record of the proceedings in rem that some specific offence is charged, for which the forfeiture in rem is sought, and that due notice of the proceedings has been given, either personally, or by some public proclamation, or by some notification or monition, acting in rem or attaching to the thing, so that the parties in interest may appear and make defence, and in point of fact the sentence of condemnation has passed upon ex parte statements without their appearance, it is not a judicial sentence conclusive upon the rights of foreigners, or to be treated in the tribunals of foreign nations as importing verity in its statements or proofs." In another place he said: "It amounts to little more in common sense and common honesty than the sentence of the tribunal which first punishes and then hears the party — castigatque auditque."

This was said, it is true, of the effect to be given in our courts to the decree of a court in a foreign jurisdiction. But the rule is the same in regard to domestic judgments, the records of which, to be effective as evidence, must show upon their face a case within the apparent jurisdiction of the court. If the mere decree and sentence of a court standing by itself, without the record of those prior proceedings necessary in law to support the judgment, is not receivable in evidence as proof of its own legality, a fortiori no effect can be given to the proceedings in this case, unless sustained by proof of the actual proceedings against Miguel Losoya and his property conducted according to law to a sentence of judicial confiscation. The mere recital of the fact in the documents of sale is not evidence of the fact.

The statement made by Captain Don Francisco del Prado y Arce in the inventory dated October 27, 1814, that the property described in the list was confiscated by order of the commanding general, Brigadier Joaquin de Arredondo, while, as contended, it may be regarded as an affirmation on his part of the fact connected with the exercise of his public functions, is nevertheless not a certificate of the fact which he was by law authorized to make as proof of its existence. So when the governor of Texas forwards that inventory to the intendant of San Luis Potosi, and in his communication states that the property had been sequestered from the insurgents, who, in 1811, took part in the revolution in Texas, it is a mere narration of a fact supposed to exist by him on the authority of others, and not by virtue of any lawful authority on his part to certify to its truth. Neither can the opinion of Don José Ruiz de Aguirre, the `asesor' of the intendancy of San Luis Potosi, and the order of the intendant, Don Manuel de Acevedo, concurring in the opinion, be regarded as a judicial finding of the fact that the property had been confiscated by the order of the commanding general of the eastern provinces. It is not shown, and is not pretended, that these officers had any authority under the law to pass judicially upon the question of the fact or the regularity of proceedings for confiscating the property of offenders, which must have taken place within the jurisdiction of another and a superior authority; nor is anything to be inferred from the fact recited that a report of the decision of these functionaries should be forwarded to the commanding general. It does not appear as a fact that they were laid before him, or were approved by him, and if they had been, his approval could not be construed to extend beyond the formal regularity of their proceedings in the sale. Notwithstanding all these recitals, and the inferences and implications that are sought to be drawn from them, it still remains that the alleged confiscation of the property of Miguel Losoya, if it ever took place, could have been lawfully effected only by means of a formal judicial proceeding, which must be primarily proved by the official record of the transaction or a duly certified copy thereof, and, secondarily, in case of its loss, by proof of its previous existence and of its contents. The certificates of other officers referring to it only incidentally and collaterally, although as the basis of their own official action, are not legal proof of the fact itself.

This principle is illustrated by the case of Atwell v. Winterport, 60 Maine, 250, where it was decided that a certificate, officially signed by the provost-marshal of the district, that the plaintiff "has this day been credited as a recruit in the navy to the" defendant town "by order of the A.A. Pro.-Mar.-Gen. of Maine," was not legal evidence of his enlistment. Appleton, C.J., said: "The fact of enlistment is a matter of record. It must be proved by a duly authenticated copy from the army records. A sworn copy is admissible, or a copy certified by the proper certifying officer. But the certificate offered is not and does not purport to be a copy of any recorded fact or of any record. It is the assertion of the person certifying that the fact therein stated is true. A mere certificate that a certain fact appears of record, without the production of an authenticated copy of the record, is not evidence of the existence of the fact."

There are certain departments of scientific knowledge where an entire series of facts or forms may always be inferred from the existence of any one, according to the maxim ex pede Herdem. The conclusion in such cases is deduced from the observed uniformity of physical nature, which by a necessity of our own minds we believe to be invariable. But this mode of reasoning has but a very limited application in the law of evidence as judicially applied to ascertain the facts and motives of human conduct. It is the foundation of the doctrine of presumptions to the extent to which they are admitted, the limits of which in its application to the circumstances of this case we have already considered. The principal fact in controversy in this case is one of that nature, which the policy of the law requires to be proved by direct evidence of a formal character. The absence of that proof cannot be supplied by argument and inference from casual and collateral circumstances.

It is further argued, however, that, admitting this to be the case so far as Miguel Losoya is concerned, and those claiming title under him, nevertheless the documents are sufficient evidence, in the first instance, against every one else, and that consequently the defendants in this action are not entitled to make the objection. In support of this contention it is said:

"Among the laws quoted by Escriche is Ley 50, tit. 5, partida 5, in the final part whereof it is said, that if a thing belonging to another person is sold to two persons at different times, he who took possession first has the better right to it, always reserving the right of the true owner; consequently, color of title, coupled with possession, gave to the vendee a real right against every one except the owner, and, therefore, it is not lawful for third parties to impugn the title, thus exercising the right reserved alone to the owner or his successors.

"If subsequently to taking possession the vendee loses possession before prescribing the thing, his right is superior to that of all persons except the owner. He may pursue his action against third parties in the capacity of owner, resting on the purchase and on subsequent possession, because third parties have no right to question the validity of the title. In such case judgment should be pronounced declaring ownership in favor of the vendee; but such judgment bears no prejudice to the true owner who had not litigated, and who, during the term of prescription, may either exercise his right de dominio, or in case the thing has returned to his power, oppose the exception de dominio against the person who would sue him for it."

This is also the rule of the common law as declared by this court in the case of Christy v. Scott, 14 How. 282, where it was applied to a case from Texas arising under a Mexican title. The court, speaking by Mr. Justice Curtis, (p. 292,) said: "According to the settled principles of the common law, this is not a defence to the action. The plaintiff says he was seized in fee, and the defendant ejected him from the possession. The defendant, not denying this, answers that if the plaintiff had any paper title it was under a certain grant which was not valid. He shows no title whatever in himself. But a mere intruder cannot enter on a person actually seized and eject him, and then question his title or set up an outstanding title in another. The maxim that the plaintiff must recover on the strength of his own title, and not on the weakness of the defendant's, is applicable to all actions for the recovery of property. But if the plaintiff had actual prior possession of the land, this is strong enough to enable him to recover it from a mere trespasser who entered without any title. He may do so by a writ of entry, where that remedy is still practiced, (Jackson v. Boston and Worcester Railroad, 1 Cush. (Mass.) 575,) or by an ejectment, (Allen v. Rivington, 2 Saund. 111; Doe v. Read, 8 East, 356; Doe v. Dyboll, 1 Moo. & M. 346; Jackson v. Hazen, 2 Johns. (N.Y.) 438; Whitney v. Wright, 15 Wend. (N.Y.) 171,) or he may maintain trespass (Catteris v. Cowper, 4 Taunt. 548; Graham v. Peat, 1 East, 246). Nor is there anything in the form of the remedy in Texas which renders these principles inapplicable to this case."

This rule is founded upon the presumption that every possession peaceably acquired is lawful, and is sustained by the policy of protecting the public peace against violence and disorder. But, as it is intended to prevent and redress trespasses and wrongs, it is limited to cases where the defendants are trespassers and wrongdoers. It is, therefore, qualified in its application by the circumstances which constitute the origin of the adverse possession, and the character of the claim on which it is defended. It does not extend to cases where the defendant has acquired the possession peaceably and in good faith, under color of title. Lessee of Fowler v. Whiteman, 2 Ohio St. 270; Drew v. Swift, 46 N.Y. 204. And in the language of the Supreme Court of Texas in Wilson v. Palmer, 18 Texas, 592, 595, "The evidence must show a continuous possession, or at least that it was not abandoned, to entitle a plaintiff to recover merely by virtue of such possession." That is to say, the defendant's possession is in the first instance presumed to be rightful. To overcome that presumption the plaintiff, showing no better right by a title regularly deduced, is bound to prove that, being himself in prior possession, he was deprived of it by a wrongful intrusion by the defendant, whose possession, therefore, originated in a trespass. This implies that the prior possession relied on by the plaintiff must have continued until it was lost through the wrongful act of the defendant in dispossessing him. If the plaintiff cannot show an actual possession, and a wrongful dispossession by the defendant, but claims a constructive possession, he must still show the facts amounting to such constructive possession. If the lands, when entered upon by the defendant, were apparently vacant and actually unoccupied, and the plaintiff merely proves an antecedent possession, at some prior time, he must go further and show that his actual possession was not abandoned; otherwise he cannot be said to have had even a constructive possession.

To the same effect are the cases of Jackson v. Walker, 7 Cowen, 637; Jackson v. Denn, 5 Cowen, 200. In Smith v. Lorillard, 10 Johns. 338, 356, Kent, Chief Justice, said: "A prior possession short of twenty years, under a claim or assertion of right, will prevail over a subsequent possession of less than twenty years when no other evidence of title appears on either side. There are many decisions of this court which look to this point. Jackson v. Hazen, 2 Johns. 22; Jackson v. Myers, 3 Johns. 388; Jackson v. Harder, 4 Johns. 202. It is, however, to be understood in the cases to which the rule of evidence applies, that the prior possession of the plaintiff had not been voluntarily relinquished without the animus revertendi, (as is frequently the case with possessions taken by squatters,) and that the subsequent possession of the defendants was acquired by mere entry, without any lawful right. That the first possession should in such cases be the better evidence of right seems to be the just and necessary inference of law. The ejectment is a possessory action, and possession is always presumption of right, and it stands good until other and stronger evidence destroys that presumption. This presumption of right every possessor of land has in the first instance, and after a continued possession for twenty years under pretence or claim of right, the actual possession ripens into a right of possession which will toll an entry; but until the possession of the tenant has become so matured, it would seem to follow that if the plaintiff shows a prior possession, and upon which the defendant entered without its having been formally abandoned as derelict, the presumption which arose from the tenant's possession is transferred to the prior possession of the plaintiff, and the tenant, to recall that presumption, must show a still prior possession; and so the presumption may be removed from one side to the other, toties quoties, until one party or the other has shown a possession which cannot be overreached, or puts an end to the doctrine of presumptions founded on mere possession by showing a regular legal title or a right of possession."

In Jackson v. Rightmyre, 16 Johns. 313, Chancellor Kent, delivering the opinion of the Court of Errors, speaks of the rule expressed by himself in the case of Smith v. Lorillard, and says that its qualifications are "that no other evidence of title appeared on either side, and that the subsequent possession of the defendant was acquired by mere entry without any legal right."

It therefore appears that prior possession is sufficient to entitle a party to recover in an action of ejectment only against a mere intruder or wrongdoer, or a person subsequently entering without right. Another qualification of the rule is, that the action to regain the prior possession must be brought within a reasonable time after it has been lost. If there has been delay in bringing the suit, the animus revertendi must be shown and the delay satisfactorily accounted for, or the prior possessor will be deemed to have abandoned his claim to the possession. Thus in Whitney v. Wright, 15 Wendell, 171, it was held that where there was a prior possession of eleven years, and then an entry by the defendants claiming under a title adverse to such possessory title, the omission to bring a suit for thirteen years, with knowledge of the adverse entry and continuance of possession under it, would authorize a jury to find an abandonment of claim by the prior possessor.

In Jackson v. Denn, 5 Cowen, 200, the defendant had entered on a vacant possession, without any claim or color of title, and it was held that the plaintiff was entitled to recover on the strength of his prior possession, but the reason why the premises had been left vacant was explained by proving that the plaintiff did not know that his tenant had left the property until he found the defendant in possession.

It follows that in cases where the proof on the part of the plaintiff does not show a possession continuous until actual dispossession by the defendant, or those under whom he claims, the burden of proof is upon the plaintiff to show that his prior possession had not been abandoned.

There is nothing in the record to show that the evidence offered and rejected was tendered as proof of a possessory title relied upon as the basis of recovery by the plaintiffs. There was certainly no distinct statement to that effect made to the court by counsel when the offer was made, and, for aught that appears, the sole ground of the offer may have been the supposition that in some way the facts testified to in the depositions might be used to supply that defect in the evidence of the existence of a confiscation decree, on which the court ruled that the documentary title was not complete. It is, nevertheless, true that the court did rule upon the offer made "that all the said evidence read, as well as that proposed to be offered, showed no title in the plaintiffs which would warrant a verdict and judgment in their favor." It may, therefore, with reason now be contended by the plaintiffs in error that this was, in effect, a direction to the jury to return a verdict for the defendants upon the whole case as contained in the documentary evidence admitted, coupled with the testimony offered and rejected, and that they are entitled to the benefit of their exception in any aspect of the case as thus made; and from this it is argued that, having shown color of title by the defective documents relating to the confiscation, and an entry into possession under them, they were entitled to prove a continuance of that possession so as to authorize a recovery upon the strength of that title alone.

Assuming this to be so, the question is presented upon the whole testimony as offered, taken in connection with the documents read, whether the plaintiffs had thereby presented such a case as, in the absence of all other testimony, would have justified a verdict in their favor. The evidence on the subject contained in the depositions did not tend to establish any possession of the premises in dispute later than the year 1835. At that time Garcia himself had died, his daughter had married in the year 1833, and from the year 1835 the mother and daughter, with the husband of the latter, had left Texas and gone into Mexico, where they have ever after remained. There is no evidence whatever that after the year 1835 they exercised any dominion or control over this property in San Antonio, or were in possession of it through tenants or agents. The proof, therefore, does not satisfy the rule as stated by the authorities cited, for, although it shows that the possession on the part of the plaintiffs had been originally acquired under color of title, it does not show that that possession had been continuous and had not been abandoned. On the contrary, so far as the proof extends, it leaves a period of time, from 1835 to 1843, when, it is alleged in the petition, that the defendants, or those under whom they claim title, entered into possession, entirely unaccounted for, and during which, so far as the plaintiffs are concerned, the possession appears to have been vacant and abandoned. It follows, therefore, that the court committed no error in rejecting the offered proof of a prior peaceable possession under color of title. The judgment is accordingly



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