[189] Iron & C. Co. 94 N. C. 525; Smith v. Tripp, The two-year period of this statute cannot 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: *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 pos 1. 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 51982. of the Revised Statutes, and the decisions of the courts of the state were adverse to such right. Rev. Stat. § 709. The 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. 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. 3. session. 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 reaffirming the title of his ancestor, and such heir was placed in formal and legal possession of the land. The decision of the court of private land claims as to the sufliciency 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. APPEAL from the Court of Private Land But it is contended that the bank fraudulently concealed from the plaintiff that it had charged him with usurious interest, and that therefore the period of limitation of the Submitted March 20, 1902. Decided April statute did not begin "until the discovery of the wrong," a disputable proposition. Besides, it is not available to the plaintiff. The petition does not disclose when the 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. The facts are stated in the opinion. possession of land is repelled and destroyed Mr. Justice Gray took no part in the de- S. 248, 44 L. ed. 150, 20 Sup. Ct. Rep. 80. cision. While the Mexican law of May 23, 1837, 866 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. Slate Harbor Comrs. 18 Wall. 57, 21 L. ed. 798. Time did not run against the sovereign in Mexico. Hall, Mexican Law, §§ 56, 612, 639; Ely v. 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, 16 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. Valiejo, 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. Charez, 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 jurisA title resting solely on prescription isdiction shall be presumed to have been not such a claim as the court of private land rightly done until the contrary appears. claims has jurisdiction to confirm. Lafayette v. Blanc, 3 La. Ann. 59. See also State v. Cardinas, 47 Tex. 250; United States v. Pouer, 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 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: Dona Ana, territory of New Mexico, alleged it was above the Southern Pacific Railin the petition to contain 4 square leagues. road bridge, a considerable distance north The petition of the appellees alleged the of that line. The interests of the individual making of a grant to their predecessors prior defendants, who were codefendants with the to the year 1790, of a tract of land known as government, were upon the tract of land ly[190] Santa Teresa; that the grant *was a good and ing between the international boundary and valid one, and the grantee entered upon and the line of the Southern Pacific Railroad took possession of the same, and that he and bridge. The decree of the court fixed the his heirs and assigns continued in peaceable south boundary at the point contended for possession up to and after the ratification by the government, thus leaving the lands in of the treaty of December 30, 1853, between which the individual defendants were interthe governments of Mexico and the United ested untouched, and, as this location of the States, by the terms of which treaty terri- line has been acquiesced in by the petitiontory, including the Santa Teresa grant, was ers, the case no longer has any bearing upon transferred to the sovereignty of the United the interests of those defendants. 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 "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 a 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 outboundaries 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. "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 tion the judge cited the witnesses named land, was vested in the said original grantee therein to appear before him, which they did, aforesaid, which right and title existed at and some of them testified to the existence of the date when the United States acquired certain documents relating to the ranch Sansovereignty over the country now embraced ta Teresa; that they had seen those docuwithin the territory of New Mexico, within ments relating to that ranch, and had scen which the said grant is situated, and that them on file in the archives, and that they the petitioners herein are entitled to have were authenticated by one of the lieutenant the same confirmed to the heirs, representa-governors that came into the district about tives, and assigns of the said original gran tee. the close of the last century, and that, by reason of the father of one of the witnesses being an employee of the town after 1821, such witness saw the original documents as to said ranch on file in the archives of his father's office, and which documents were the archives of the town; that the town had been occupied by the American forces, and it was a notorious fact that those forces took a part of the public archives, and also occupied José Maria Garcia's house, taking therefrom documents relating to his property and papers of importance, among them the document of such ranch. Possession of the ranch from the time of the alleged grant 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) that there was no evidence that any grant by an officer authorized to make it had ever been "In view of the foregoing judicial inquiry made to the original grantees from whom with which the executor, José Maria Garcia, the petitioners derived title; (2) that there has proved legally the possession that for is no evidence that the grant, even if one many years they have had of the ranch were made, was ever recorded as required by called Santa Teresa, above the dam of the the treaty with Mexico, dated December 30. town and the Muleros bend, and it appearing 1853, concluding the Gadsden purchase (10 that they have ever had titles to said propStat. at L. 1031, 1035), the 6th article of erty, and these have been lost, and from which provides that no grant made prior to what appears from the testament and judiSeptember 25, 1853, will be respected or con- cial inquiry there is given to the executor sidered as obligatory which has not been lo-José Maria Garcia, for himself and in the cated 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. "It is therefore adjudged, decreed, and specified that the said private land claim, the subject of this suit, is a valid claim against the United States of America for the [193]land included within the natural bounda-lost when the Americans took possession of ries above set forth, and the claim to the said land grant as designated, located, bounded, and described herein be, and the same hereby is, confirmed to the heirs, legal representatives, and assigns of the said original grantee, excepting, however, from this confirmation any right or title to any gold, silver, or quicksilver mines or minerals of the same, the same remaining the property of the United States." judge made a finding in favor of Garcia as name of the coheirs, without prejudice to 1. For the purpose of proving that a grant had once been made of the land in question, the petitioners introduced in evidence a correct 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 appears 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-be placed in possession, and it is afterwards 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 original document there be taken the testimony of certain reputable persons existing in the town, who knew that these documents were recited that Garcia went to the place named with the witnesses and was placed in possession 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 document 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 facts a presumption of a record, as well as referred to in the treaty of 1853, but only a record of the proceedings just mentioned, and was contained in a book or collection of papers indorsed 1853. The record was received in evidence under the objection of the Our view of the evidence is that this government, one of the objections being that tract of land was in the possession of Franthe whole proceeding was ex parte, and cisco Garcia exclusively during his lifetime therefore incompetent as evidence for any of from the beginning of this century, and that the partics. The court below regarded the upon his death it passed to the hands of his proceeding as in the nature of one to perpet- children and remained in their possession uate evidence, and held that the testimony until long after the transfer of sovereignty had been taken under the provisions of the of the country to the United States, and is law of the Republic of Mexico of May 23, now in the possession of their grantees and 1837, and in the judgment of the court the their families. There have been very few record was therefore admissible in evidence. claims based upon long possession more satThe law is said to be a re-enactment of arisfactorily made out, in our minds, than is ticle 11 of the decree of July 22, 1833. Rey-made out by the evidence in this case. These nolds, p. 173. As translated the law reads: being the facts as we find them, we feel ab"Art. 14. The district judges, with respect to solutely bound by the doctrine established[197] the towns where they live, shall have cogni- in the case of United States v. Charcz, 175 zance, by way of precaution, with the al- U. S. 509, 44 L. ed. 255, 20 Sup. Ct. Rep. caldes of the same, in the making of inven- 159. tories, evidence ad perpetuam, and other judicial proceedings of like nature, in which there is yet no opposition of parties." There are no adverse claimants to the land in question, and the proof of possession, exclusive in its nature, has been satisfactory We are not prepared to say that the rec- to the court below. What constitutes such ord thus put in evidence was void or irregu- possession of a large tract of land depends lar under the law just quoted. The judg- to some extent upon circumstances, the fact ment by its terms does not assume to be con- varying with different conditions, such as clusive. It was a judicial inquiry made ac- the general state of the surrounding country, cording to law, before a judicial officer of whether similar land is customarily devoted the state; and while the judgment gives to to pasturage or to the raising of crops, to the the petitioner, on account of the grant growth of timber or to mining, or other purproved. the lands described in his petition, poses. That which might show substantial yet such judgment is by its terms "without possession, exclusive in its character, where prejudice to any third party proving a bet- the land was devoted to the grazing of nuter right;" and it gives, subject to such merous cattle, might be insuflicient to show proof, "the real, actual, personal, corporal the same kind of possession where the land [196] possession,*or that which better corresponds was situated in the midst of a large populain law, by reason of immemorial possession, of the Santa Teresa ranch, with the enjoy; ments and benefits of the lands, woods, and pastures, and all other products to be found on such premises," etc. In other words, the judgment recognizes his possession and reaf firms the title of Garcia. tion, and the country devoted, for instance, of the nature and manner of the use to which and appreciating the weight and value to be have been familiar with the cases involving most of the lands in the same vicinity are In the absence of any sufficient attack up-low unusual readiness for correctly judging put, have given the judges of the court beon the record, or of any evidence on the part of the government going to disprove or discredit the averments contained therein, we think it formed enough of a basis for the finding of the court below that there was a grant made as stated in its findings, and that such grant and the record thereof in the archives had been destroyed under the circumstances mentioned. While this evidence, as to the existence of a grant, possibly might not be suflicient of itself upon which to 383, 586, 18 Sup. Ct. Rep. 4. When, therefound a decree confirming a title under it, fore, a majority of the court decides that yet, taken in connection with the proof which the evidence of possession given in the case will be hereafter referred to, of possession is most satisfactory, we are inclined to conunder a grant, since 1790 up to the time of cur in that view unless it is clear that the the filing of the petition in the court below, court fell into a plain error, which we think it was sufficient upon which to base a pre- is not the case. A majority of the court has sumption of the existence of all papers nec-held that "there have been very few claims essary to constitute a title to the land possessed under it. 2. The objection of a lack of evidence that the alleged grant had ever been recorded may be considered with the one averring there was no sufficient evidence of possession upon which to base a presumption of a grant. It is claimed by the appellee that under the based upon long possession more satisfactori |