When a government officer, acting under authority of law and in
accordance with its forms, conveys to an individual a tract of land
as land of the government, the deed will pass only such title as
the government has therein, and there is no presumption of law that
it is a valid title.
Under the provisions of Spanish law in force in Mexico in
1814-1817, confiscation of property as a punishment for the crime
of treason could only be effected by regular judicial proceedings,
and, it being once declared, the property remained subject to the
exclusive jurisdiction of the intendants, both in ordering sale and
in taking cognizance of controversies raised concerning it.
There is no legal presumption in favor of jurisdiction in
proceedings not according to the common course of justice, but the
policy of the law requires the facts conferring it to be proved by
direct evidence of a formal character.
The facts that Spanish public officers seized a tract of land in
Mexico as confiscated for the treason of its owner, and that after
taking regular and appropriate steps for its sale, they proceeded
to sell it and to make conveyance of it by instruments reciting
these facts and accompanied by certificates of the officers who
took part in the transaction that the property had been so
confiscated raise no presumption, under the law of any civilized
state, that any judicial proceedings were taken against the owner
to find him guilty of treason or to confiscate his property for
that offense.
To entitle a plaintiff to recover lands by virtue of prior
possession, in an action brought against an intruder, a wrongdoer,
or a person subsequently entering without right, it must appear
that the possession was in the first instance under color of right,
and that it has been continuous and without abandonment, or, if
lost, that there was an
animus revertendi.
Trespass to try title. The following is the case, as stated by
the Court.
This is an action of trespass to try title brought in the
Circuit Court of the United States for the Western District of
Texas by Pilar Garcia de Sabariego and her husband, Manuel,
citizens of Mexico, against Maverick and others, citizens of Texas,
to recover a certain tract of land lying in the City of San
Antonio, Texas. She claimed the property as the sole
Page 124 U. S. 262
heir of her deceased father, Francisco Garcia, and of her
deceased mother, Gertrudes Berrera de Garcia, both of whom, it was
alleged, died seized and possessed of the said land. The different
defendants filed pleas of not guilty, the statute of limitations,
alienage of the plaintiffs, etc. On the trial, as shown by the bill
of exceptions, the plaintiffs read in evidence certain partition
proceedings showing title in one Miguel Losoya to the suerte or
tract claimed in the suit by a grant from the King of Spain. The
plaintiffs next offered in evidence certain documents, the
originals being in Spanish, and translations of which into English
are set out, and a deed from a board of commissioners to Garcia,
showing a sale and conveyance of the premises in controversy to
him, based, according to the recitals, upon a confiscation of the
property of Losoya by the Spanish government in the year 1814.
These documents relating to the confiscation, sale, and conveyance
of the property in controversy were admitted in evidence, the court
stating at the time that in its opinion they did not show any
decree or adjudication of confiscation sufficient to warrant the
sale, and that unless the plaintiffs could show some further
proceedings upon which to base the action of the officers in the
premises, the said proceedings constituted no legal confiscation
and passed no title to the purchaser at said sale. Counsel for the
plaintiffs then stated to the court that they were unable to offer
in evidence any further or other confiscation decree or proceedings
than those already offered and read in evidence. Counsel for the
plaintiffs then offered other testimony in depositions,
"but the court, upon the objection of defendants, refused to
allow the depositions aforesaid or any part of them to be read, and
refused to permit plaintiffs to make any of the proofs aforesaid,
upon the ground that the said confiscation proceedings were
insufficient to pass title of any character, and that no title of
any character was thereby passed to or vested in said Garcia, and
that this was fatal to plaintiffs' right of recovery, and that all
the said evidence read, as well as that proposed to be offered,
showed no title in plaintiffs which would warrant a verdict and
judgment in their favor. "
Page 124 U. S. 263
The court thereupon directed a verdict for the defendants, which
was rendered, and judgment thereon accordingly, to reverse which
this writ of error is prosecuted.
The documents relating to the sale and conveyance of the
premises in dispute are as follows:
The first is entitled:
"The governor of the province of Texas returns statements of
property confiscated from the rebels in Bexar, and of the condition
thereof, and asks whether some of it may be sold."
Then follows a list of the names of the parties and a general
description of the property of each, extended into a column of
valuations. In this list appears the name of Miguel Losoya; the
property described, one-half dula of water; extended 100. This list
is preceded by the following heading:
"Statement of property confiscated from the rebels of this city
by the order of the commanding general, Don Joaquin de Arredondo,
as shown by the statement and inventory made by Captain Don Fran'co
del Prado y Arce on the twenty-seventh of October, 1814, which I
copy, and to which I refer myself, viz."
It is dated Bexar, the twenty-seventh of October, 1814, and
signed F'co del Prado y Arce, Juan Fran'co de Collantes. Then
follows:
"General inventory and copy of property belonging to the King,
and confiscated from the insurgents of this province, which I
received from my predecessor, Lieutenant Don Juan Antonio Padilla,
and is now in existence,
viz."
In this list also appears Miguel Losoya's one-half dula of
water. Then follows, under the head of remarks, the following:
"All the other confiscated property appearing in the statement
made by Don Francisco del Prado as above, in the copy of the
statement of existing property which I have received from my
predecessor, Lieutenant Don Antonio Padilla, now wanting, shall be
accounted for by my predecessor in office, since I have had no
knowledge of it, but I will be accountable for the property which I
received from said Padilla, as appears in this last statement."
"Bexar, nineteenth of September, 1817."
"JUAN FRAN'CO DE COLLANTES"
Page 124 U. S. 264
On the same document is the following endorsement:
"[On margin:] On the twentieth inst. receipt was acknowledged,
stating that he shall be advised of the result."
"There are in this city several houses sequestered from the
insurgents who took part in the revolution of this province, which
took place in the past year, 1811, but all of them are so
deteriorated that they are becoming wholly unserviceable, having
never been repaired owing to want of funds for that purpose, a few
of them having been inhabited by persons connected with the army
who, considering their well known straightened circumstances, had
means to pay rent only. The result is that although at that time
they were appraised by commissioners appointed for that purpose,
according to their inventory existing in these archives, in amounts
which were then adequate, they cannot now be worth one-half of what
they were then, and some of them may not be worth one-third, and,
considering that their ruinous condition increases from day to day,
I hope that your lordship will please tell me whether some of them
may be sold in case that purchasers be found, and whether, owing to
the cause above specified, some rebate may be made on the appraised
value, considering that at this moment a buyer comes before me of a
house appraised at three hundred and eighty dollars, but, inasmuch
as the price does not suit him, he asks for some rebate on it, said
house being wholly unserviceable. In these terms, and considering
that this business is under the authority of the intendancy, I
shall act according to the instructions which your lordship may
give on the subject. God keep you many years."
"Bexar, September 14, 1817."
"ANTONIO MARTINEZ"
"To the Intendant of San Luis Potosi."
"One 'cuartillo.'"
"Fourth stamp: 'One cuartillo.' For the years eighteen hundred
and fourteen and fifteen."
"SAN LUIS POTOSI, the twentieth of October, 1817"
"Let the official communication of the Governor of the Province
of Texas, and inventory and statements thereto
Page 124 U. S. 265
attached, upon houses sequestered from the rebels at Bexar, and
asking whether some of them may be sold, be filed, and let the
whole be referred to the 'asesor' for his opinion upon such
instructions as may be proper. The intendant 'corregidor' of this
province, Don Manuel Jacinto de Acevedo, has thus decreed and
ordered, and did sign hereto with assisting witnesses, in default
of a notary, which I certify."
"[Seal 1817]"
"MANUEL DE ACEVEDO"
"Assisting,"
"JOSE MARIA BURAL"
"MAN. JOSE DOMINGO"
"One cuartillo"
"[On margin:] Erasures are not valid"
"To the Intendant"
"Article 82 of the Royal Ordinance of December 4, 1786, gives
powers, in case of confiscation by sentence of any property within
the territory of this province, and makes it the special duty of
your lordship to proceed to the alienation and collection of the
proceeds and to take cognizance of all litigation and claims
subsequently arising, and on the same subject a superior order was
afterwards issued referring to property confiscated from the
rebels. In these terms and in the case to which the governor of the
Province of Texas makes reference at the beginning of his report of
the nineteenth of September of this year, that the confiscation of
the property mentioned in it was effected by the order of the
commanding general of the eastern provinces, the provisions of said
articles are applicable, and consequently your lordship should be
pleased to order that the confiscated property, owing to the
deterioration it has suffered, as stated, be reappraised by two
sworn experts, thus altering the value heretofore assessed on it in
order to facilitate its more speedy sale, and that its total loss
may not result to the prejudice of the royal treasury, and said
property being thus appraised let it at once be offered in public
sale for the term of nine days, three outcries being afterwards
made, and at the last outcry, adjudication being awarded to the
best bidders for parcels, who may appear with the respective
bond
Page 124 U. S. 266
certificates by persons able to give security for their bids,
and these bids shall be good and may be accepted for adjudication
thereon, provided that others be not made a little more in excess
of the two-third parts of the amount of appraisement, this being
the practice generally observed in all the tribunals. And your
lordship will please give notice of this decision to the commanding
general, whereupon these proceedings should be referred for the
specific objects to the Governor of Bexar, who should in due time
report the results to this intendancy."
"San Luis Potosi, October 29, 1817."
"[Lic'do] JOSEF RUIZ DE AGUIRRE"
"SAN LUIS POTOSI, October 31, 1817"
"As the 'asesor' advises, let this be communicated to the
commanding general of the eastern provinces for his information.
This his lordship has decreed and signed hereto, which he
certifies."
"ACEVEDO"
"Assisting,"
"JUAN JOSE DOMINGO, 3"
"JOSE MARIA BURAL"
"On the same day an official communication was addressed to the
general commanding the eastern provinces, with insertion of the
foregoing opinion, which I certify."
"______ ________, Paraph."
Then follows a
"statement showing the property sequestered from the rebels of
the capital of Texas, according to the inventory existing in the
archives of this government, specifying that which has subsequently
been returned, donated, and finally ruined by the swollen river in
the overflow of the fifth of July of this year,
viz."
This includes Miguel Losoya, one-half dula of water, rented for
one fanega of corn; dated at Bexar, September 10, 1819.
The next document referred to is called a "translation of
confiscation proceedings of 1819," dated at the intendancy of San
Luis Potosi, in the year 1819:
"The Governor of Texas reports the injury caused by the overflow
undergone by the City of Bexar on the fifth of July to the landed
estate confiscated
Page 124 U. S. 267
from the insurgents. Statement of the houses and 'jocales'
(thatched cabins) belonging to the royal domain, as confiscated
from the rebels, which have been ruined in the overflow of the City
of Bexar which took place in the morning of the fifth of July."
Then follows a list of houses and "jocales," dated Bexar, the
eighth of July, 1819, signed Jose Flores, Examined, Martinez, with
the following statement at its conclusion:
"On the morning of the fifth instant, in consequence of a
terrific waterspout which bursted north of this city, the river
became so swollen as to run over its banks, causing a general
overflow such as has never been beheld in the province before,
leaving the city in such a condition that it may be said to exist
no longer, and its inhabitants (those who were not victims of the
fury of the waters) being reduced to the most lamentable
destitution. The landed estate belonging to the royal domain by
sequestration has been ruined by that overflow, a statement of
which property I enclose herewith for the knowledge of your
lordship. The unfortunate condition of this people did not allow me
to offer that property for sale as your lordship had instructed;
now and for better cause it will be more difficult, and all the
houses left standing will by degrees fall in ruins, as they have
been considerably shattered by the overflow; even the parcels of
cultivable land are no longer fit for cultivation. Therefore your
lordship will please determine as you may deem most advisable, in
order that the royal domain may not suffer a total loss. May God
preserve you many years."
"Bexar, July 9, 1819 ANTONIO MARTINEZ"
"To the Intendant, Don Manuel Acevedo"
"One 'quartillo' fourth [L/S.] stamp, one quartillo, years
eighteen hundred and sixteen and eighteen hundred and seventeen.
One 'quartillo.'"
"September 13, 1819"
"[L. S.] LUIS POTOSI"
"Let the Governor of the Province of Texas be notified that this
intendancy is informed of the occurrence referred to in
Page 124 U. S. 268
the foregoing letter, and that inasmuch as the property
mentioned in the accompanying list has suffered so great injury,
while other property is completely falling into ruin, he will cause
the same to be appraised again by experts, sworn in due form, and
that it be sold at auction, to be awarded to the best bidder,
conforming himself, so far as the said occurrence allows, to the
order given on the subject and contained in the proceedings
addressed to him on the thirty-first of October, eighteen hundred
and seventeen. Thus, it has been determined and signed by the
'Senor Intendente Corregidor' of this province, by the advice of
his 'Intendente Letrodo,' before me, which I certify."
"MANUEL DE ACEVEDO"
"
Licenciado Josef Ruiz de Aguirre"
"Before me -- ANTONIO MARIA JUARES"
"
Notary Royal and Military Intendente of State"
"On the seventeenth of the same month the letter was dispatched
as by orders."
"JUARES"
This list of houses and "jocales" does not contain any reference
to Miguel Losoya, but in the same document follows a "statement of
property this day in existence confiscated from the rebels of the
capital of Texas,
viz." In that list is found the name of
"Miguel Losoya, one-half stock watering privilege (
media dula
de argua), with its land," dated Bexar, September 10, 1819,
signed Jose e Flores and Martinez.
Then follows an
"exhibit of the property sequestered from the rebels of the
capital of Texas according to the inventory existing in the
archives of this government, stating what was subsequently
restored, donated, and received, and finally swept off by the
waters of the river in the overflow of the fifth of July of this
year,
viz."
In this again appears "Miguel Losoya, one-half stock watering
privilege, with land, rented for one fanega of corn," dated Bexar,
September 10, 1819, signed Jose Flores, Examined, Martinez. And
there is added the following statement:
Page 124 U. S. 269
"Considering that the overflow of the fifth of July last past
resulted in the ruin of several houses and all the 'jocales' which
were sequestered and belong to the royal domain, I instructed the
agent of said property to make statements, which I enclose herewith
to your lordship for your information. One of these statements
exhibits all the sequestered property, as I did formerly report to
your lordship, stating the disposition made of that property. The
other statement shows what is this day remaining of said property,
with the remark that in relation to the arable lands, most of it
has been destroyed by the overflow, being situated in close
proximity to the banks of the river, and they are no longer fit for
cultivation. I also enclose to your lordship a statement, as
required, of the same commissioner, who has not one 'real' on hand,
but holds some bills, part of which may be collected, being against
the troops, to which they may be charged on their accounts; others,
however, will be of difficult collection, being due by several
parties whom the late misfortune has left in the greatest
destitution, and now exclusively depending on the charity of his
Excellency, the viceroy, who has sent $29.00 for the purpose, and
of the most illustrious prelate, Don Jose Ignacio de Aransivia, who
contributed $19.00. However, your lordship will determine as you
deem just. May God preserve your lordship many years."
"Bexar, September, 1819."
"ANTONIO MARTINEZ"
"To the Intendant, Don Manuel de Acevedo"
"LUIS POTOSI, October 20th, 1819"
"Let this letter and accompanying documents be filed with the
former proceedings existing in this intendancy, and be referred to
the 'promoter fiscal,' and according to his request to the
assessor."
"[L.S.] ACEVEDO"
"Antonio Maria Guares, one 'quartillo;' fourth stamp, one
quartillo; years eighteen hundred and sixteen and eighteen hundred
and seventeen, one quartillo."
"[L.S.] [L.S.] One quartillo. "
Page 124 U. S. 270
Also the following:
"Proceedings of sale of the Property Sequestered from the Rebels
for the Account of the Royal Revenues. Year 1819."
"The real estate sequestered in this capital from the rebels,
having to be sold for the benefit of the royal treasury in order
that said royal treasury may not lose all its interests owing to
the great depreciation suffered by said property, and by virtue of
the orders received by me on the subject, I commission you jointly
with the inhabitants, Don Vicenti Gortori, first regidor, and Don
Jose Flores, agent of said property, to proceed to said sale in
accordance with the opinion of the assessor of the intendancy of
San Luis Potosi, a copy of which I enclose to you in order that you
may conform with it in all its points, and to form the heading of
the proceedings to be instituted on the subject. I do likewise
enclose a statement of the houses and lands which must be sold
according to the last appraisement made by the experts, Jose
Donaciano Ruiz and Francisco Zapata, master masons, for the houses,
and for the lands by the farmers Francisco Flores, Don Santiago
Seguin, Diago Perez, and Jose Gomez, to whom I did administer the
oath to proceed to the appraisement, and you will inform me of the
result and forward said proceedings to me. May God preserve you
many years."
"Bexar, sixth of November, 1819."
"ANTONIO MARTINEZ"
"To Captain Don Manuel Cedran"
"Potosi, the twentieth of October, 1817"
"Let the letter of the Governor of the Province of Texas and the
accompanying inventory and statement of houses sequestered from the
rebels of Bexar be filed, advising whether any of them may be sold,
and let the whole be referred for advice to the assessor for such
determination as he deems proper. The 'intendante corregidor' of
this province, Don Manuel Jacinto de Acevedo, has thus determined
and ordered and
Page 124 U. S. 271
signed hereto, with assisting witnesses, in default of a notary,
which I certify."
"MANUEL DE ACEVEDO"
"Assisting,"
"JUAN JOSE DOMINGUEZ"
"JOSE MARIA LOMA"
"To the Intendant"
"Article 82 of the royal ordinance of December 4, 1786, gives
power in case that in the territory of this province the case
should arise to confiscate any property, it should be the special
duty of your lordship to proceed to the alienation and to the
collection of the proceeds, notwithstanding all pleadings and
applications subsequently made. On this same subject, orders were
subsequently issued referring to property confiscated from the
rebels. Consequently, and whereas the Governor of the Province of
Texas states at the beginning of the statement made on the
nineteenth of September of this year that the confiscation from the
inhabitants referred to in it was made by the order of the
commanding general of the eastern provinces, the case referred to
in said article exists, and therefore your lordship should order
that the confiscated property, owing to the depreciation suffered
by it, shall be appraised again by two sworn experts, thus
modifying the prices formerly assessed, in order to facilitate a
prompt sale, and to avoid a total loss to the injury of the royal
treasury, and that said property, upon being thus appraised, be
placed at auction for nine days, and afterwards cried three times,
and at the last cry be adjudicated to the best bidder or bidders
for parts, who may appear with proper security papers by
individuals able to be good for their bids, and said securities
shall be good and may be accepted in proceeding to the
adjudication, provided that other parties do not offer a little
more than two-thirds of the appraisement, this being the practice
habitually observed by all courts, and your lordship should inform
the commanding general of this determination, and subsequently
refer these proceedings for the contemplated purpose to the said
Governor of Bexar, who will in due time report the results to the
intendancy."
"San Luis Potosi, October 29, 1817."
"LICENCIADO JOSE RUIZ DE AGUIRRE"
Page 124 U. S. 272
"San Luis Potosi, October 31, 1817"
"Agreeably to the advice of the assessor, this will be
communicated to the commanding general of the eastern provinces for
his information."
"Thus, his lordship has decreed and did sign hereto, which I
certify."
"ACEVEDO"
"Assisting,"
"JUAN JOSE DOMINGUEZ"
"JOSE MARIA LOMA"
"I, Don Antonio Martinez, Knight of the Royal Order San
Hermenegildo, Colonel in the royal armies, and civil and military
governor for his majesty of this province of the Texas, New
Philippines, etc., do certify that the foregoing opinion is a
literal copy of that appearing in the proceedings referred from the
intendancy of San Luis Potosi and existing in the archives of
government in my charge, and for due authenticity I have signed
hereunto at Bexar, the sixth of November, 1819."
"ANTONIO MARTINEZ"
To this is attached: "Exhibit of property sequestered from the
rebels to be offered at public auction, with statement of the value
of the same according to the last appraisement." In this list is
contained Miguel Losoya's suerte, and extended in a column of
figures at 50. This list is dated Bexar, the sixth of November,
1819, and signed Antonio Martinez.
Then follows a return by the commissioners of the sale, as
follows:
"Pursuant to your lordship's order to proceed to the sale and
adjudication of the property sequestered from the rebels of this
province, the same was placed at auction for the term of nine days,
after which it was cried three times, as prescribed by the order of
the Intendant of San Luis Potosi, said property and grounds being
adjudicated at the last cry, as appears from the documents which we
return to your lordship, with others referred by you to this board,
for your information, with the
Page 124 U. S. 273
understanding that the buyers have been notified to keep the
amounts in which the adjudication was made subject to your
lordship's pleasure. The other property has not been adjudicated,
because no bidders presented themselves."
"May God preserve your lordship many years."
"Bexar, November 22, 1819."
"MANUEL CEDRAN"
"VICENTE GORTORI"
"JOSE FLORES"
"To Governor Don Antonio Martinez"
"In the City of San Fernando de Bexar, on the twenty-second day
of the month of November, in the year eighteen hundred and
nineteen, we, the board of commissioners organized for the sale of
the property sequestered from the rebels of this province by the
order of the governor of the same, Colonel Don Antonio Martinez,
viz., Captain Don Manuel Cedran, Don Vicente Gortori,
first regidor of the ayuntamiento of this capital, and the
inhabitant Don Josef Flores de Abrego, by virtue of the order of
the said governor heading these proceedings, in consequence of the
order received by that chief from the intendancy of San Luis
Potosi, also herein inserted, to proceed to the sale of said
property sequestered, as appears in the exhibit accompanying the
order of said governor, the whole for the benefit of the royal
treasury, do certify and, so far as we are able, do pledge our
faith that, after having placed said sequestered property mentioned
in the above-recited order and exhibit at auction for the term of
nine days, and caused the same to be cried three times, according
to the order of the Intendant of San Luis Potosi, they were
adjudicated at the last cry, which took place on the twenty-first
instant."
Then follows a list of the property sold, including "that of
Miguel Losoya, also in favor of Captain Don Francisco Garcia, in
fifty-five dollars." The return proceeds:
"To which parties adjudication was made, being the only ones
whose respective bids reached the limits specified, no other party
having bidden over them, nor did buyers present
Page 124 U. S. 274
themselves for the other property contained in the governor's
statement, and for due authenticity, wherever it may be proper, we
give the presents, signed by us on the aforesaid day, month, and
year."
"MANUEL CEDRAN"
"VICENTE GORTORI"
"JOSE FLORES"
"
Presidial Company of Bexar"
"Received from the board commissioned by the governor of the
province, Colonel Don Antonio Martinez, the sum of three thousand
one hundred and fifty-five dollars, proceeds of the sale of rebel
property in favor of the royal treasury, which shall be charged to
this company, of which I am the fiscal agent, and used for the
support of the troops in said province."
"Bexar, November 27, 1819."
"$3, 155.00"
"ALEXANDRO TRAVINO"
"Examined: MARTINEZ"
"The property sequestered from the rebels in this capital having
been offered for sale by virtue of your lordship's order to me on
the subject, I enclose to you the proceedings formed concerning
said sale, together with the receipt of the sum of three thousand
one hundred and fifty-five dollars, proceeds of the sale of said
property, which amount was received by the financial agent of this
presidial company for the support of the troops of this province,
which had no means whatever. Therefore I hope that, should your
lordship deem it proper, the royal treasury department at Saltillo
will be instructed to charge the same against the said Bexar
Company. As to the property still remaining unsold, no bidder
having presented himself owing both to the depreciated condition of
the same and to the poverty of the population, which does not
permit them to buy it, some purchasers might present themselves if
it were sold on credit, which point I did not wish to determine
because, although some honorable persons may be found able to
assume that indebtedness, the uncertainty of the crops and their
reduced proportion might prevent them from meeting it. However,
your lordship will determine as you deem advisable. "
Page 124 U. S. 275
"Respecting the house sequestered from the rebel Vicente
Travieso (which has been provisionally transferred to the
ayuntamiento of this city by your lordship's order), no bidder will
ever appear, because it has been materially injured by the
overflow, and it would be impossible for the whole population to
raise the four thousand five hundred dollars, amount of its reduced
appraisement. May God preserve your lordship many years."
"Bexar, December 10, 1819."
"ANTONIO MARTINEZ"
"To the Intendant, Don Manuel de Acevedo"
"Potosi, January 20, 1820"
"To the 'promotor fiscal,' in whose office the former
proceedings exist, Licenciado Ruiz de Aguerro: I return these
proceedings, after having taken proper action thereon and on the
former proceedings, without the respective requests, in order that
the 'juez de letros' of the respective district may act as he deems
just."
"Potosi, April 16, 1821."
"LICENCIADO MARQUEZ"
The next document is the deed of the commissioners, as
follows:
"
Translation of Deed. Nov. 23, 1819"
"
V
alid during the reign of our Lord Ferdinand 7th"
"
4th stamp, 1819"
"The party interested paid in this revenue office, in my charge,
the half 'real,' cost of this stamp."
"Bexar, November 23, 1819."
"LUIS GALAU (Paraph)"
"In the City of San Fernando de Bexar, on the twenty-third day
of the month of November, in the year eighteen hundred and
nineteen, we, the commissioners of the board organized for the sale
of property confiscated from the rebels of this province, by the
order of the governor of the same, Colonel Don Antonio Martinez,
viz., Captain Don Manuel Cedron, Don Vicente Gortori,
first regidor of the ayuntamiento of this capital, and the resident
Jose Flores de Abrego, by
Page 124 U. S. 276
virtue of the order of the said governor, in consequence of the
order received by said chief from the intendancy of San Luis
Potosi, to proceed to the sale and adjudication of said confiscated
property for the benefit of the royal treasury, do certify and do,
so far as we can, bear evidence that after said property was
offered in public auction, according to accustomed processes, the
'suerte' of Miguel Losoya was adjudicated in favor of Don Francisco
Garcia in the sum of fifty-five dollars, being bounded on the north
by the land of the widow of Vicente Amador, on the south by that of
Cipriano Losoya, on the east by the wall of the mission of Balero,
and on the west by the land of Don Francisco Collantes and Manuel
Hirnines, which tract of land was delivered by said board to
Captain Don Francisco Garcia in the specified sum of fifty-five
dollars, which he paid in current money for the benefit of the
royal treasury, in consideration whereof he shall possess it now
and hereafter as its lawful lord and owner, remaining at liberty to
sell it again, to donate or transfer it by inheritance to
whomsoever it may be his will, so that no contradiction may be
opposed as to the freedom in which he remains to make use of it,
and for due authenticity, and in order that this evidence of sale
may avail him as a title and muniment in the archives of the
government, and that as many copies of the same may be delivered to
the party interested as he may desire, we sign these presents in
the City of Bexar on the day, month, and year above stated."
"MANUEL CEDRON (Paraph)"
"VICENTE GORTORI (Paraph)"
"JOSE FLORES (Paraph)"
"I approve this sale"
"MARTINEZ (Paraph)"
Among the depositions offered in evidence on the part of the
plaintiffs were those of Juan N. Seguin and Jose Flores. The former
of these, Juan N. Seguin, testified that he had resided in San
Antonio from the year of his birth, 1807, until the year 1842; that
in 1833 he was Mayor of the City of San Antonio, and political
chief
pro tempore of the Department of Texas; that in
1835, he was captain of a company of Mexican
Page 124 U. S. 277
volunteers, and took part in the battle of San Jacinto in
defense of the independence of Texas, April 21, 1836; that in 1838,
he was elected senator in the Congress of Texas, and in May, 1840,
Mayor of the City Council of the City of San Antonio, and that in
1869 he was appointed county judge of Wilson County, Texas, but
subsequently removed to Mexico. He also testified that he was
personally acquainted with the lands in controversy, known as the
"Miguel Losoya Suerte," and had been since the year 1818, when
Francisco Garcia consulted his father as to its purchase, and was
acquainted with it as the property of Garcia, who went into and
maintained peaceable possession of it until the year 1834, when he
died of cholera in the Bahia del Esperita Santo, near Goliad. He
says the possession of the land by Garcia was public and notorious,
and that from 1824 to 1835 it was cultivated by Felipe Musquize,
whose brother, Don Raymond Musquize, was the attorney in fact of
Don Francisco Garcia. This testimony as to possession is
corroborated by the witness Flores, who says he leased it himself
in 1835 from Raymond Musquize, which fact is also testified to by
another witness, Louis Gomez. It further appears from the record
that the plaintiffs' demurrer to the answers of the defendants,
pleading the alienage of the plaintiffs and the statutes of
limitation as defenses, being overruled, the plaintiffs took issue
by a general denial of the allegations by a supplemental petition,
which also alleged
"that in the year 1833, and from said year and up to the
institution of this suit by the plaintiffs, Pilar Garcia de
Sabariego had been a
feme covert and married woman, and
during the whole of said period labored, and still labors, under
the disability of being a
feme covert and married woman;
that her father, Francisco Garcia, died intestate at Goliad, Texas,
in the year 1834, and her mother, Gertrudes Barrerra de Garcia died
intestate at Matamoras, in Mexico, in the year 1843; that at the
times of the death of her said father and mother, and from said
times until the bringing of this suit, she labored, and still
labors, under the disability of being a
feme covert and
married woman, and plaintiffs plead the said disability as
excepting and saving the said Pilar from the operation of all
limitation laws and from all presumptions of grant, and any and all
other presumptions and pleas in defendants' answers contained,
which are not good as against a
feme covert and married
woman. "
Page 124 U. S. 278
MR. JUSTICE MATTHEWS, after stating the facts as above,
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 Senor 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
Page 124 U. S. 279
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 depository
(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 entrusted 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 Jose Ruiz de Aguirre, the Assessor
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 assessor were judges, and in these cases acted as
judges; there is reason, therefore, for affirming that by a
judicial resolution
Page 124 U. S. 280
(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 assessor'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.
31 U. S.
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
Page 124 U. S. 281
be presumed to be an 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 (
13 U. S. 9 Cranch 99;
18 U. S. 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 coordinate 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
Page 124 U. S. 282
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 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, etc.
King v. Picton, 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 (
5 U. S.
1 Cranch 170,
5 U. S. 171), legislative (
17 U. S. 4 Wheat. 423;
27
U. S. 2 Pet. 157;
29 U. S.
4 Pet. 563), judicial (11 Mass. 227; 11 S. & R. 429,
adopted in
27 U. S. 2 Pet. 157,
27 U. S.
158), or special (20 Johns. 739, 740; 2 Dow, 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 Tex. 235.
Page 124 U. S. 283
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 preexisting, 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 passed 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.
120 U. S.
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,
29 U. S. 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,
Page 124 U. S. 284
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. It 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.
92 U. S.
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 praesumuntur 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
Page 124 U. S. 285
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 anyone 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 Ordonamiento 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 Novissima 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."
he 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
Page 124 U. S. 286
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 Senor 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
Page 124 U. S. 287
appoint . . . subdelegates 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
subdelegate 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 subdelegate 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
Page 124 U. S. 288
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 Jose 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 assessor 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.
Page 124 U. S. 289
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 subdelegates
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 assessor.
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 assessor. The intendant and his assessor
therefore in the determination of this point, were called upon to
inquire whether the confiscation was legal, or in other words,
whether a competent
Page 124 U. S. 290
authority had ordered it. In the present case, as appears by the
documents, the intendant and his assessor 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
(
escriptura) 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.
Page 124 U. S. 291
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 offense 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 offense 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
Page 124 U. S. 292
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 praesumuntur 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
offense 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 offense 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 offense, 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,
93 U. S.
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
Page 124 U. S. 293
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
Alexandria v.
Fairfax, 95 U. S. 774. The
subject was very thoroughly examined by Mr. Justice Story in
Bradstreet v. Neptune Inc. Co., 3 Sum. 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. 60):
"I hold, therefore, that if it does not appear upon the face of
the record of the proceedings
in rem that some specific
offense 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
defense, 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
Page 124 U. S. 294
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 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
Jose Ruiz de Aguirre, the assessor 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
Page 124 U. S. 295
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
Atwood v.
Winterport, 60 Me. 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
Herclem. 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
Page 124 U. S. 296
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 everyone 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 everyone
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.
55 U. S. 292),
said:
"According to the settled principles of the common
Page 124 U. S. 297
law, this is not a defense 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 &
Worcester Railroad, 1 Cush. 575, or by an ejectment,
Allen
v. Rivington, 2 Saund. 111;
Doe v. Reade, 8 East 356;
Doe v. Dyeball, 1 Moo. & M. 346;
Jackson v.
Hazen, 2 Johns. 438;
Whitney v. Wright, 15 Wend. 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 Tex. 592, 595,
"the evidence must show a continuous possession, or at least
that it was not abandoned, to entitle a
Page 124 U. S. 298
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. 356, Kent, C.J., 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 legal 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
Page 124 U. S. 299
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 pretense 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 Wend. 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
Page 124 U. S. 300
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 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 as 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.
Page 124 U. S. 301
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 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
Affirmed.
