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ways plaintiff's claim of rights under $8 5197 and 5198 of the Revised Statutes of the United States.

Messrs. A. A. Hoehling, Jr., and James K. Redington argued the cause and filed a brief for plaintiff in error:

The obligation to sue for the recovery of the penalties provided by U. S. Rev. Stat. § 5198, does not arise until the actual payment of the usurious interest in whatever form that payment may be made or enforced and then for the first time the statute of limitations of two years commences to run. Brown v. Marion Nat. Bank, 169 U. S. 416, 42 L. ed. S01, 18 Sup. Ct. Rep. 390. Fraudulent concealment would prevent the running of the statute until the discovery of the fraud.

Pearsall v. Smith, 149 U. S. 236, 37 L. ed. 717, 13 Sup. Ct. Rep. 833. See also to the same effect, Bank of United States v. Moss, 6 How. 37, 12 L. ed. 334; Page v. Bank | of Alexandria, 7 Wheat. 35, 5 L. ed. 390; Penn v. Flack, 3 Gill & J. 369; Lewis v. Kramer, 3 Md. 265; Hopkins v. Kent, 17 Md. 113; Stone v. Lawrence, 4 Cranch C. C. 11, Fed. Cas. No. 13,484; Randon v. Toby, 11 How. 521, 13 L. ed. 796; Moses v. Taylor, 6 Mackey, 255.

Messrs. Jeremiah M. Wilson, James K. Redington and A. A. Hoehling, Jr., filed a brief in opposition to motion to dismiss or affirm.

Mr. Francis F. Oldham argued the cause and filed a brief for defendant in er

ror:

To give the Supreme Court of the United States jurisdiction of a writ of error to a state court it must appear affirmatively, not only that a Federal question was involved, but that the judgment as rendered could not have been given without deciding such question.

De Saussure v. Gaillard, 127 U. S. 216, 32 L. ed. 125, 8 Sup. Ct. Rep. 1053; Johnson v. Risk, 137 U. S. 300, 34 L. ed. 683, 11 Sup. Ct. Rep. 111.

As the suit was not commenced until more than two years after the transactions there was no cause of action by the express terms of the proviso of U. S. Rev. Stat. § 5198.

Norfolk Nat. Bank v. Schwenk, 46 Neb. 381, 64 N. W. 1073; Bobo v. People's Nat. Bank, 92 Tenn. 444, 21 S. W. 888; Higley v. First Nat. Bank, 26 Ohio St. 75, 20 Am. Rep. 759.

The petition of plaintiff fails to give color to any right under a statute of the United States. Merely reciting a statute, as plaintiff has done, does not constitute a claim of right.

Wilson v. North Carolina, 169 U. S. 586, 42 L. ed. 865, 18 Sup. Ct. Rep. 435; Hamblin v. Western Land Co. 147 U. S. 531, 37 L. ed. 267, 13 Sup. Ct. Rep. 353; New Orleans v. New Orleans Waterworks Co. 142 U. S. 79, 35 L. ed. 943, 12 Sup. Ct. Rep. 142; St. Louis, C. G. & Ft. S. R. Co. v. Missouri ex rel. Merriam, 156 U. S. 478, 39 L. ed. 502, 15 Sup. Ct. Rep. 443.

This Court can review the judgment of a

state court only when the right, privilege, or immunity claimed under the Constitution or any treaty or statute of the United States was especially set up or claimed in the state court at the proper time and in the proper way.

Chappell v. Bradshaw, 128 U. S. 132, 32 L. ed. 369, 9 Sup. Ct. Rep. 40; Leeper v. Texas, 139 U. S. 462, 35 L. ed. 225, 11 Sup. Ct. Rep. 577; Spies v. Illinois, 123 U. S. 131, sub nom. Ex parte Spies, 31 L. ed. 80, 8 Sup. Ct. Rep. 21; Re Buchanan, 158 U. S. 31, 39 L. ed. 884, 15 Sup. Ct. Rep. 723; Winona & St. P. Lund Co. v. Minnesota, 159 U. S. 540, 40 L. ed. 252, 16 Sup. Ct. Rep. 88.

Mr. Asa F. Call also argued the cause, and, with lir. Henry J. Taylor, filed a brief for defendant in error:

On error this Court will not review a question of fact found by the supreme court of Iowa.

Hedrick v. Atchison, T. & S. F. R. Co. 167 U. S. 673, 42 L. ed. 320, 17 Sup. Ct. Rep. 922; Egan v. Hart, 165 U. S. 193, 41 L. ed. 682, 17 Sup. Ct. Rep. 300; Dower v. Rich ards, 151 U. S. 658, 38 L. ed. 305, 14 Sup. Ct. Rep. 452.

This Court has no jurisdiction of this case on error, because the allegations of the petition in error affirmatively show that the action was determinable and determined on a mere question of fact in which the meaning, construction, or validity of the Federal statute was not drawn into question.

Carothers v. Mayer, 164 U. S. 325, 41 L. ed. 453, 17 Sup. Ct. Rep. 106; Moran v. Horsky, 178 U. S. 205, 44 L. ed. 1038, 20 Sup. Ct. Rep. 856.

To give this Court jurisdiction, on this writ of error, it must appear by apt allegations, not only that the application of the Federal statute was involved, but that the controversy was actually determined by a construction put upon the Federal statute adverse to the contention of the plaintiff in error.

Blackburn v. Portland Gold Min. Co. 175 U. S. 571, 44 L. ed. 276, 20 Sup. Ct. Rep. 222; Shoshone Min. Co. v. Rutter, 177 U. S. 514, 44 L. ed. 868, 20 Sup. Ct. Rep. 726.

The time within which the action must be brought operates as a limitation of the liability itself as created, and not of the 1emedy alone. It is a condition attached to the very right to sue. Time is made of the essence of the right, and the right is lost if the time is disregarded. The liability and the remedy are created by the same statute, and the limitation of the remedy is to be treated also as a limitation of the right.

Haseltine v. Central Nat. Bank, 183 U. S. 132, ante, 118, 22 Sup. Ct. Rep. 50; Daingerfield Nat. Bank v. Ragland, 181 U. S. 45, 45 L. ed. 738, 21 Sup. Ct. Rep. 536; 19 Am. & Eng. Enc. Law, pp. 150, 151; Bartlett v. Manor, 146 Ind. 621, 45 N. E. 1060; The Harrisburg, 119 U. S. 199, sub nom. Harrisburg v. Rickards, 30 L. ed. 358, 7 Sup. Ct. Rep. 140; Finnell v. Southern Kansas R. Co. 33 Fed. 427; Hudson v. Bishop, 35 Fed. 820; Spicer v. Hockman, 72 Ind. 120; Potts v. Felton, 70 Ind. 166; Taylor v. Cranberry

Iron & C. Co. 94 N. C. 525; Smith v. Tripp, 14 R. I. 112. See also Palen v. Johnson, 50 N. Y. 49; Savings & T. Co. v. Bear Valley Irrig. Co. 89 Fed. 38; Atchison, T. & S. F. R. Co. v. Tanner, 19 Colo. 564, 36 Pac. 541; Goodwin v. Cunningham, 54 Neb. 16, 74 N. W. 315; Lambert v. Ensign Mfg. Co. 42 W. Va. 817, 26 S. E. 431; McCartney v. Tyrer, 94 Va. 203, 26 S. E. 421; Hoover v. Chesapeake & O. R. Co. 46 W. Va. 270, 33 S. E. 224.

The two-year period of this statute cannot be extended by any engrafted qualification for fraud concealed or newly discovered.

19 Am. & Eng. Enc. Law, p. 151; Taylor v. Cranberry Iron & C. Co. 94 N. C. 525; Suggs v. Travelers Ins. Co. 71 Tex. 579, 1 L. R. A. 847, 9 S. W. 676; Cochran v. Young, 104 Pa. 333; Luther v. Luther, 122 Ill. 558, 13 N. E. 166; Spicer v. Hockman, 72 Ind. 120; Potts v. Felton, 70 Ind. 166.

[188] *Mr. Justice McKenna delivered the opinion of the court:

1. A motion is made to dismiss on the ground that the record presents no Federal question. The motion is overruled. Plaintiff claimed a right under §§ 5197 and 5198 of the Revised Statutes, and the decisions of the courts of the state were adverse to such right. Rev. Stat. § 709.

2. The demurrer of defendant in error was sustained because the action was not "commenced within two years from the time the usurious transaction occurred." This ruling was indubitably right if any date mentioned in the petition be that of the usurious transaction or transactions relied on. The latest date mentioned in the petition is the 31st of May, 1894, when, it is alleged, "J. W. White and the defendant herein (plaintiff in error) took possession of the lands and property described" in the mortgage which Talbot gave to the bank March 4, 1890. The present suit was commenced October 7, 1896, hence not within two years from the 31st of May, 1894, and not within six years from the date of the judgment upon which the property was sold.

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But it is contended that the bank fraudulently concealed from the plaintiff that it

*UNITED STATES, Appt.,

v.

M. R. PENDELL and J. Escobar.

(See S. C. Reporter's ed. 189-202.)

Private land claims-evidence of grantconclusiveness of findings of fact-presumption of grant and of record from possession.

1. Sufficient support in the evidence for a finding of the court of private land claims that a Spanish grant of land was made to the original grantees, from whom the petitioners derived their title, is afforded by a correct copy of the original and uncontroverted record in ex parte proceedings taken before a civil judge of the canton, under the act of the Republic of Mexico of May 23, 1837, to perpetuate evidence of the title, in which, upon evidence of a grant and continuous possession under it, and of the destruction by the military forces of the United States of the original documents of title, with the official registry where they were recorded, judgment was entered recognizing the possession of the heir of the original grantee, and reaf firming the title of his ancestor, and such heir was placed in formal and legal posses sion of the land.

2.

3.

The decision of the court of private land claims as to the sufficiency of the evidence of possession under a Spanish land grant will not be reviewed by the United States Supreme Court merely because the evidence is such that different inferences might be drawn therefrom.

The existence of a proper and valid Spanish grant, and its proper record in the archives of Mexico, within the provisions of article 6 of the treaty of December 30, 1853, with that country, that no grant should be respected which had not been so recorded, may be presumed from satisfactory proof of exclusive and uninterrupted possession under a claim of title continuing from 1790 until the filing of the petition for confirmation of the grant in the court of private land claims, together with evidence of the existence of a grant covering the land so possessed, and of the destruction by the military forces of the United States of the original documents of title, and of the record of the grant in the place where records of grants of land in the neighborhood were customarily made.

[No. 211.]

21, 1902.

had charged him with usurious interest, and Submitted March 20, 1902. Decided April that therefore the period of limitation of the statute did not begin "until the discovery of the wrong," a disputable proposition. Be

The petition does not disclose when the sides, it is not available to the plaintiff. wrong was discovered. On the face of the petition the action was barred, and against its allegations and the circumstances detailed in it we cannot indulge the supposition that plaintiff's consciousness of the wrong was not aroused until sometime within two years before the commencement of this action.

Judgment affirmed.

cision.

title under a Spanish land grant. Affirmed.
APPEAL from the Court of Private Land
Claims to review a decree confirming
The facts are stated in the opinion.

Solicitor General Richards and Messrs.
Matthew G. Reynolds and William H.
Pope submitted the cause for appellant:

The presumption of a grant from the long possession of land is repelled and destroyed by the production or proof of the instrument under which the possession was held. Nieto v. Carpenter, 21 Cal. 455. To the same effect is Hays v. United States, 175 U.

Mr. Justice Gray took no part in the de- S. 248, 44 L. ed. 150, 20 Sup. Ct. Rep. 80.
While the Mexican law of May 23, 1837,

[189]

gave the power to judges of first instance | duly recorded in the archives of Mexico, as to take testimony ad perpetuam, such power was not one to proceed ex parte to examine witnesses and to render judgments against either private citizens or the government. On the contrary, it was the power simply to proceed in certain cases and upon certain conditions, in default of a compliance with which the proceeding was simply void.

Escriche's Dictionary of Legislation & Jurisp. p. 867.

Similar proceedings were considered by this court in Whitney v. United States, 167 U. S. 529, 42 L. ed. 263, 17 Sup. Ct. Rep. 857, and it was held that, since the Crown was no party to the proceedings, they could not be considered in the light of res judicata. Both continuous and exclusive possession is essential to a prescriptive title.

Whitney v. United States, 167 U. S. 529, 42 L. ed. 263, 17 Sup. Ct. Rep. 857. See also Bergere v. United States, 168 U. S. 79, 42 L. ed. 387, 18 Sup. Ct. Rep. 4.

Testimony as to possession since the treaty, no matter how "exclusive and notorious," is not to be regarded as an element going to make up a title..

Hays v. United States, 175 U. S. 259, 44 L. ed. 154, 20 Sup. Ct. Rep. 80.

The principle of nullum tempus is one universal to all nations, and is firmly engrafted upon our own system of government. Lindsey v. Miller, 6 Pet. 672, 8 L. ed. 541; Weber v. State Harbor Comrs. 18 Wall. 70, 21 L. ed. 803; Sparks v. Pierce, 115 U. S. 408, 29 L. ed. 428, 6 Sup. Ct. Rep. 102; Gibson v. Chouteau, 13 Wall. 99, 20 L. ed. 536; Redfield v. Parks, 132 U. S. 239, 33 L. ed. 327, 10 Sup. Ct. Rep. 83.

The Novisima Recopilacion having been approved and ordered observed as the law of the Spanish dominion by King Charles IV. in a cedula dated July 15, 1805, this was a declaration which interrupted the running of prescription from that date, even if it ran before against the Crown.

Weber v. State Harbor Comrs. 18 Wall. 67, 21 L. ed, 798.

Time did not run against the sovereign in

Mexico.

Hall, Mexican Law, §§ 56, 612, 639; Ely ▼. United States, 171 U. S. 233, 43 L. ed. 147, 18 Sup. Ct. Rep. 840; Crespin v. United States, 168 U. S. 208, 42 L. ed. 438, 18 Sup. Ct. Rep. 53.

required by article 6 of the Gadsden treaty. Fuentes v. United States, 22 How. 443, is L. ed. 376; Peralta v. United States, 3 Wall. 434, 18 L. ed. 221; Luco v. United States, 23 How. 515, 16 L. ed. 545; United States v. Bolton, 23 How. 347, 16 L. ed. 571; United States v. Vallejo, 1 Black, 541, 17 L. ed. 232; United States v. Castro, 24 How. 346, 349, 16 L. ed. 659, 660; Berreyesa v. United States, 154 U. S. 623, and 23 L. ed. 913, 14 Sup. Ct. Rep. 1179; Whitney v. United States, 181 U. S. 110, 45 L. ed. 773, 21 Sup. Ct. Rep. 565; United States v. Teschmaker, 22 How. 405, 16 L. ed. 357; United States v. Pico, 22 How. 406, 16 L. ed. 357; United States v. Knight, 1 Black, 228, sub nom. United States v. Moorehead, 17 L. ed. 76; United States v. Neleigh, 1 Black, 298, 17 L. ed. 144; Romero v. United States, 1 Wall. 742, 17 L. ed. 632; White v. United States, 1 Wall. 660, 17 L. ed. 698; United States v. Ortiz, 176 U. S. 422, 44 L. ed. 529, 20 Sup. Ct. Rep. 466; United States v. Elder, 177 U. S. 104, 44 L. ed. 690, 20 Sup. Ct. Rep. 537.

General proof of destruction of papers is one thing, and proof that a given grant had been duly recorded and the record thereof destroyed is something very different.

United States v. Knight, 1 Black, 228, sub nom. United States v. Moorehead, 17 L. ed. 76; Peralta v. United States, 3 Wall. 440, 18 L. ed. 223.

Mr. T. B. Catron submitted the cause for appellees:

Even if there was no actual documentary evidence of a grant, yet the open, notorious, continuous, adverse possession of the tract under the claim of title by grant, for twenty years or more, would invoke in favor of the claimant the presumption of the existence of a grant; and not only that, but a presumption of the existence of every fact necessary to make a valid and complete grant, including the requisite or necessary record thereof.

United States v. Chaves, 159 U. S. 452, 40 L. ed. 215, 16 Sup. Ct. Rep. 57; United

States v. Chavez, 175 U. S. 523, 44 L. ed. 260, 20 Sup. Ct. Rep. 159; Williams v. Don ell, 2 Head, 697; Ely v. United States, 171 U. S. 233, 43 L. ed. 147, 18 Sup. Ct. Rep.

840.

Every act of a court of competent jurisisdiction shall be presumed to have been rightly done until the contrary appears.

A title resting solely on prescription not such a claim as the court of private land claims has jurisdiction to confirm.

Lafayette v. Blanc, 3 La. Ann. 59. See also State v. Cardinas, 47 Tex. 250; United States v. Power, 11 How. 570, 13 L. ed. 817; United States v. Rillieux, 14 How. 189, 14 L. ed. 381.

A title derived from the Spanish or Mexican government must be one "lawfully and regularly derived" from one of those governments, and it must be made to "appear" that it is so derived.

Hayes v. United States, 170 U. S. 637, 42 L. ed. 1174, 18 Sup. Ct. Rep. 735.

There is no proof that this grant was

Voorhees v. Jackson ex dem. Bank of United States, 10 Pet. 449, 9 L. ed. 490; Williams v. United States, 1 How. 290, 11 L. ed. 135; Nations v. Johnson, 24 How. 195, 16 L. ed. 628; Harvey v. Tyler, 2 Wall. 328, 17 L. ed. 871; Baltimore & P. R. Co. v. Sixth Presby. Church, 91 U. S. 127, 23 L. ed. 260.

Mr. Justice Peckham delivered the opinion of the court:

The government appeals in this case from a decree of the court of private land claims in favor of the appellees, confirming their title to a certain tract of land in the county of

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Dona Ana, territory of New Mexico, alleged in the petition to contain 4 square leagues. The petition of the appellees alleged the making of a grant to their predecessors prior to the year 1790, of a tract of land known as [190] Santa Teresa; that the grant *was a good and valid one, and the grantee entered upon and took possession of the same, and that he and his heirs and assigns continued in peaceable possession up to and after the ratification of the treaty of December 30, 1853, between the governments of Mexico and the United States, by the terms of which treaty territory, including the Santa Teresa grant, was transferred to the sovereignty of the United States. The petition then alleged that in the year 1846, while the original documents of title were in existence in the town of Paso del Norte, in the state of Chihuahua, where the heir resided, the place was occupied by the military forces of the United States, and the original documents of title and the official registry where they were recorded were destroyed by the American forces; that proceedings had been taken on January 7, 1853, for the purpose of perpetuating evidence of the title, and in accordance with which the judicial authorities re-established the boundaries and monuments of the grant, and placed the heir in formal and legal possession of the same on January 16, 1853. A certified record of these proceedings was alleged to be on file in the office of the United States surveyor general for the territory of New Mexico, a duplicate copy of the same in the Spanish language, with a translation also in duplicate, being filed with the petition. The boundaries of the grant were stated, and the petitioners averred that they were the owners in fee of the land contained in the grant by inheritance and purchase from the original grantee, Francisco Garcia, and that the title of the original grantee, his heirs and assigns, in and to the grant, was complete and perfect at the date when the United States acquired sovereignty over the territory of New Mexico, and also at the time of the ratification of the treaty between the United States and the Mexican Republic, known as the Gadsden purchase, on December 30, 1853; and it was averred that the land had been in the peaceable and undisturbed possession of the original grantee, his heirs, etc., from the date of the making of the grant to the present time; and that there was no person in possession of the land claiming the same adversely to the petitioners or otherwise than by lease or permission from them.

The answer of the United States denied all [191]the material *averments of the petition, and denied that the petitioners were entitled to the relief or any part thereof prayed for, and asked that the petition should be dismissed. Subsequently, certain persons, claiming adversely to the petitioners, entered their appearance by their solicitor as defend

ants.

The principal issue in the case in regard to the boundaries of the alleged grant related to the southern line, the petitioners claiming that it was located at the international boundary line, while the government claimed

it was above the Southern Pacific Railroad bridge, a considerable distance north of that line. The interests of the individual defendants, who were codefendants with the government, were upon the tract of land lying between the international boundary and the line of the Southern Pacific Railroad bridge. The decree of the court fixed the south boundary at the point contended for by the government, thus leaving the lands in which the individual defendants were interested untouched, and, as this location of the line has been acquiesced in by the petitioners, the case no longer has any bearing upon the interests of those defendants.

'The decree of the court was in favor of the petitioners, establishing their grant, with the southern line thereof as stated, and found that the petitioners were the grantees or assignees of the title of the original grantee, Garcia. Two of the judges dissented from the opinion and judgment of the court upon grounds stated in their opinions. The court made the following findings of fact:

"That prior to the year 1790, in accordance with the petition of Francisco Garcia, a citizen of the province of New Mexico and Kingdom of Spain, then and there duly made and presented to the duly authorized representatives of the King of Spain in and for New Biscay, which is now the state of Chihuahua of the Mexican Republic, the said authorities and representatives of the Crown and the King of Spain, by virtue of the power and authority in them vested as such, and in accordance with the laws, usages, and customs of the said Kingdom of Spain, made to the said Francisco Garcia grant of a certain piece and parcel of land situate in the county of Dona Ana, in the territory of New Mexico, as at present constituted, the same then being a dependency[192] and province of the said Kingdom of Spain, said piece and parcel of land so granted as aforesaid being bounded, described, located, and designated as follows:

"The tract of land known as the 'Santa Teresa:' Bounded on the north by that bend known as the 'Cobrena;' on the south by the bend of the Piedras Paradise, the same being somewhat to the north of the present location of the Southern Pacific Railroad bridge, where the same crosses the Rio Grande del Norte; on the east the old bed of the said Rio Grande del Norte, as the same ran and existed in the year 1853; and on the west the brow of the ridge running parallel with the said river.

"2. That thereupon then and there the said Francisco Garcia was duly placed in legal possession of the said grant by officials to that end duly authorized by the laws, usages, and customs of the said Kingdom of Spain, according to the laws, usages, and customs then in force.

"3. That the land included in the said out

boundaries continued in the possession of the said grantee, his heirs, legal representatives, and assigns, from the time of the making thereof, prior to the year 1790, as aforesaid, down to the present time, and that the petitioners herein have succeeded in part to the 'rights of the said original grantee.

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"And the court thereupon finds, as mat- the title to the land in question, which ter of law, that by reason of the facts afore- prior to the year 1790 had been possessed by said an imperfect or equitable title and right, his father and thereafter occupied by his such as the United States under the stipula-family until the Indians *caused them to[194] tions of the treaty of Guadalupe Hidalgo leave the premises. Pursuant to the petiought to recognize and confirm, to the said land, was vested in the said original grantee aforesaid, which right and title existed at the date when the United States acquired sovereignty over the country now embraced within the territory of New Mexico, within which the said grant is situated, and that the petitioners herein are entitled to have the same confirmed to the heirs, representa-governors that came into the district about tives, and assigns of the said original grantee.

the

tion the judge cited the witnesses named
therein to appear before him, which they did,
and some of them testified to the existence of
certain documents relating to the ranch San-
ta Teresa; that they had seen those docu-
ments relating to that ranch, and had seen
them on file in the archives, and that they
were authenticated by one of the lieutenant

the close of the last century, and that, by reason of the father of one of the witnesses "It is therefore adjudged, decreed, and being an employee of the town after 1821, specified that the said private land claim, such witness saw the original documents as the subject of this suit, is a valid claim to said ranch on file in the archives of his against the United States of America for the father's office, and which documents were [193] land included within the natural bounda- lost when the Americans took possession of ries above set forth, and the claim to the said the archives of the town; that the town had land grant as designated, located, bounded, been occupied by the American forces, and and described herein be, and the same hereby it was a notorious fact that those forces took is, confirmed to the heirs, legal representa- a part of the public archives, and also occutives, and assigns of the said original gran- pied José Maria Garcia's house, taking tee, excepting, however, from this confirma- therefrom documents relating to his propertion any right or title to any gold, silver, or ty and papers of importance, among them quicksilver mines or minerals of the same, the document of such ranch. Possession of same remaining the property of the the ranch from the time of the alleged grant United States." was also proved. Upon evidence of this naThe government now raises several objecture, testified to by several witnesses, the tions to these findings, and it is stated (1) judge made a finding in favor of Garcia as that there was no evidence that any grant by follows: an officer authorized to make it had ever been made to the original grantees from whom the petitioners derived title; (2) that there is no evidence that the grant, even if one were made, was ever recorded as required by the treaty with Mexico, dated December 30, 1853, concluding the Gadsden purchase (10 Stat. at L. 1031, 1035), the 6th article of which provides that no grant made prior to September 25, 1853, will be respected or considered as obligatory which has not been located and duly recorded in the archives of Mexico; (3) that there was no sufficient evidence of possession upon which to base a presumption that a grant had ever been made.

"In view of the foregoing judicial inquiry
with which the executor, José Maria Garcia,
has proved legally the possession that for
many years they have had of the ranch
called Santa Teresa, above the dam of the
town and the Muleros bend, and it appearing
that they have ever had titles to said prop-
erty, and these have been lost, and from
what appears from the testament and judi-
cial inquiry there is given to the executor
José Maria Garcia, for himself and in the
name of the coheirs, without prejudice to
any third party proving a better right, the
real, actual, personal, corporal possession, or
that which better corresponds in law, by rea-
son of immemorial possession, of the Santa
Teresa ranch, with the enjoyment and bene-
fits of the lands, woods, and pastures, and
all other products to be found on said prem-
ises; and it is ordered that he be protected
and defended therein, warning all not to in-
terrupt or molest him in said possession and
free use that he may deem fit to make "there-[195]
of, without he being first heard and judg
ment rendered against him in court after a
trial."

1. For the purpose of proving that a grant
had once been made of the land in question,
the petitioners introduced in evidence a cor-
rect copy of the original documents showing
the proceedings taken before the second civil
judge of the canton, the original of which
was on file in the office of the judge at Paso
del Norte. From these proceedings it ap-
pears that on January 7, 1853, José Maria
Garcia, residing in the then town of El Paso
del Norte, presented to the second civil
The judge also ordered that Garcia should
judge, etc., à petition, in which he alleged at a certain day named attend with the
that he was the testamentary executor un-judge and witnesses, in order that he might
der the will of his deceased mother, the wid
ow of Garcia, and that among the property
of that estate was a ranch called Santa Te-
resa, the document of which he had lost
when the American forces took possession of
the town; and he prayed that in order to
supply in some manner the lack of the origi-
nal document there be taken the testimony
of certain reputable persons existing in the
town, who knew that these documents were

be placed in possession, and it is afterwards
recited that Garcia went to the place named
with the witnesses and was placed in posses-
sion of the land described in the petition.
This record of all the proceedings thus taken
formed part of the archives of the office of
the judge, and was an official public docu-
ment belonging to such archives, as testified
to by the successor of the judge. It was not
the record of the original grant, such as is

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