If the removal of a public record from its place of deposit is
not prohibited by reason of public policy, it constitutes, when
legitimately removed, the best evidence of its contents and of its
authenticity.
An original muniment of title produced from the public archives
in which it is required by law to be deposited, certified by the
public officer who has custody of it, and identified by him as a
witness, is sufficiently authenticated to authorize it to be
offered in evidence.
A charge in an action to try title to real estate which
instructed the jury that if they believe that a paper offered in
evidence containing a signature of a party under whom both parties'
claim was as old as its date imported, and that it had been
preserved in the public archives as the initial paper in the grant,
they might give to these circumstances the weight of direct
testimony to the genuineness of the signature, and if the other
proof did not in their judgment overbear its weight, might find the
signature to be proved, neither takes from the jury the
determination of the weight of evidence nor submits to it a
question that should be decided by the court.
Papers not otherwise competent cannot be introduced in evidence
for the mere purpose of enabling a jury to institute a comparison
of handwriting; but where other writings, admitted or proved to be
genuine, are properly in evidence for other purposes, the
handwriting of such instruments may be compared by the jury with
that of the instrument or signature in question, and its
genuineness inferred from such comparison.
When the plaintiff and the defendant both claim title under the
same original application, and one introduces it in evidence and
establishes its identity, the other is estopped from denying the
genuineness of the signature to it of the party under whom both
claim.
One claiming under a deed forty years old through several mesne
conveyances may offer the deed in evidence as an ancient deed,
though never seen by any but the first grantee to whom it was
given.
A power of attorney authorized the donee to take possession of
real estate by himself or by a person in his confidence, to
cultivate it, to sell it, to exchange it or to alienate it. He
endorsed it to A by a writing stating "I transfer all my powers in
favor of A, in order that in my name and as my attorney he may take
possession," &c.
Held that the endorsement only gave A
power to take possession, but no power to sell.
A cause was tried before a jury in a state court, and being
taken to the highest court of the state, that court ordered a new
trial, deciding that a
Page 125 U. S. 398
certain document was admissible in evidence as an ancient deed.
After the cause was remanded to the trial court, it was removed to
the circuit court of the United States.
Held that its
decision on that question was binding on the courts of the United
States.
In the courts of the United States, it is competent for the
court to give to the jury its opinion upon the weight of evidence,
leaving the jury to determine upon the testimony.
In Texas in the year 1833, a power of attorney to take
possession of and convey real estate which was not acknowledged,
witnessed, certified to, written on sealed paper, nor proved before
a notary was nevertheless a valid instrument, those formalities
merely affecting the mode of authenticating it.
The English rule as to the requisites of a power to execute
sealed instruments was not in force in Texas when the transactions
here in controversy took place.
A copy made in 1837 of a lost certified copy of a power of
attorney is admissible in evidence to show that the original power,
found and produced in court, was an ancient instrument.
A recital in an ancient power of attorney that the donor is a
citizen raises a presumption of the truth of that fact which can be
overthrown only by positive proof.
Trespass to try title. Judgment for defendants and judgment on
the verdict. Plaintiff sued out this writ of error. The case is
stated in the opinion of the Court.
MR. JUSTICE BRADLEY delivered the opinion of the Court.
This is an action of trespass to try title, brought by the
appellant to recover from the appellees the possession of eleven
leagues of land situated in McLennan and Bosque Counties in Texas
on the west bank of the River Brazos, and granted by the government
of Coahuila and Texas in December, 1828, to one Miguel Rabago. The
defendants pleaded not guilty, the statute of limitations, and
laches. The action was commenced on the 11th of September, 1873, in
the District Court of McLennan County, Texas, and was tried in that
court in the year 1876, and a verdict was rendered and judgment
given for the defendants. The case was then appealed
Page 125 U. S. 399
to the Supreme Court of Texas, and at the Austin term of 1878,
the judgment was reversed for an error in the charge on the
question of laches, and the cause was remanded for a new trial. 49
Tex. 582. It was then removed to the Circuit Court of the United
States for the Northern District of Texas, and was tried in that
court in April term, 1884. Both parties claim title under Rabago --
the plaintiff by derivation from his heirs at law (he having died
in 1848), and the defendants through an alleged conveyance made by
Rabago in his lifetime by an attorney in fact one Victor Blanco. No
question is made, therefore, as to the validity of Rabago's title.
The principal controversy at the trial arose in relation to the
admission in evidence of two papers offered by the defendants,
namely, first, the protocol, or first original, of the application
of Rabago for the grant, and of the concession made thereon,
produced from the archives in the office of the Secretary of State
of Coahuila at Saltillo; secondly, the alleged original power of
attorney from Rabago to Blanco, by virtue of which the latter
executed a conveyance of the land in the name of Rabago, under
which the defendants claim title. The latter was admitted as an
ancient document in case of insufficient proof of Rabago's
signature, but the jury were permitted to compare the signature
with that purporting to be Rabago's affixed to the protocol of the
application for the grant. Several bills of exception were taken by
the plaintiff to the rulings and charge of the court. A verdict was
rendered for the defendants, and judgment was entered thereon, to
reverse which the present writ of error was brought.
The following are copies of the documents referred to. The
translation of the alleged protocol of Rabago's application, and of
the concession made thereon, is in the words following, to-wit:
Page 125 U. S. 400
"[Seal of Coahuila and Texas]"
"Petition of Don Miguel Rabago for the purchase of eleven
leagues of land in the Department of Bexar. December 1, 1828."
"3d seal. Two reals. Issued by the State of Coahuila and Texas
for the years 1828 and 1829."
"Most Excellent Sir: The citizen Miguel Rabago, resident of the
Valley of Santa Rosa, with due respect represents to you that,
needing land for agricultural and raising of stock, he begs you
that, by virtue of your authority, you will be pleased to sell him
eleven leagues of land on the margins of the Trinity River, in the
Department of Bexar, or in the section which shall appear to me to
be most convenient and best adapted to my interests, being all
together or in different localities, offering to settle and
cultivate said lands within the time prescribed by the colonization
laws of the state of the 24th of March, 1825. Also that you will be
pleased to grant me the time designated by the said law to pay the
dues on the said land. I ask your Excellency that you will be
pleased to refer my petition, for which I will be thankful."
"Leona Vicario, 28th of November, 1828."
"[Signed] MIGUEL RABAGO"
"LEONA VICARIO, 2d of Dec'r, 1828"
"Conformable to article 24 of the colonization laws of the 24th
of March, 1825, I sell to the petitioner the eleven leagues of land
he asks for of the vacant lands in the Department of Texas, in the
part he may point out, or in the locality most suitable to him. The
commissioner whom the government will appoint will place him in
possession of said leagues, and will extend the necessary titles,
previously classifying the class and quality of said lands as a
guide of the amount to be paid to satisfy the government dues, for
which payment I grant him the time designated by the 22d article of
said colonization law. A copy of the petition and decree will be
given to the party, intended for his observance and the subsequent
effects."
"[Signed] VIESCA"
"SANTIAGO DEL VALLE"
Page 125 U. S. 401
This protocol, or second original, was authenticated by a
certificate annexed thereto by the Secretary of State of Coahuila,
the translation of which is in the words following, to-wit:
"The citizen, Licentiate Jose Ma. Musquiz, Secretary of the
Government of Coahuila de Zaragoza, certifies that the annexed
document is the original which exists in the archives of the
government of Coahuila relative to the concession of eleven
[leagues] of land made to Don Miguel Rabago, in the Department of
Bexar, on the second of December, 1828. And at the request of the
applicant this document is given, with the obligation of returning
it when the suit in which it is to be used shall be
terminated."
"Saltillo, April 6, 1881."
"[Seal] [Signed] JOSE MA. MUSQUIZ,
Sect'y"
The translation of the alleged original power of attorney from
Rabago to Blanco is in the words following, to-wit:
"MONCLOVA, 8th June, 1832"
"Senor Don Victor Blanco:"
"My esteemed Uncle and Sir:"
"With this I hand you the testimonio of eleven leagues of land
which his Excellency the governor of the state granted to me a sale
of, in the Department of Texas, in order that you may have the
goodness to do whatever should be in your power so that possession
may be taken of them by yourself, or by a person of your
confidence, giving to you the most ample power so that you may
cultivate them, may sell them, may exchange, or alienate to your
entire satisfaction, because for everything I authorize you, and I
will stand and I will pass in all time for that which you should
do, and should this, my letter power, not be sufficient, I will
grant judicially as soon as you please, and notify me that you
require it, and you excusing this trouble. I place myself at your
disposal as your most affectionate nephew and servant, who
attentively kisses your hands."
"[Signed] MIGUEL RABAGO [rubric]"
Page 125 U. S. 402
"
(Endorsement)"
"I transfer all my powers in favor of Senor Don Samuel Williams,
postmaster of the Town of San Felipe de Austin, in order that in my
name, and as my attorney, he may take possession of the eleven
leagues expressed in this."
"[Signed] VICTOR BLANCO [rubric]"
"Monclova, 3d April, 1833"
It appeared on the trial that the extension of final title to
Rabago was made on the 13th of January, 1834, on the application of
Samuel M. Williams, as attorney for Rabago, but no power of
attorney authorizing him to make the application was produced or
proved by the plaintiff, whose title depended on the extension thus
obtained. The paper above copied, however, purporting to be a power
of attorney from Rabago to Blanco and propounded by the defendants,
if their witnesses were to be believed, was found among the old
papers of Williams in the custody of his son, and had on it an
endorsement by Blanco transferring to Williams all the powers
conferred upon him so far as to enable him (Williams) to take
possession of the eleven leagues of land. The defendants claimed
that after the title was thus extended, to-wit, on the 25th of May,
1836, Victor Blanco, under and by virtue of the power of attorney
referred to, sold the land in question, in the City of Mexico, to
one Guillermo Laguerenne by an act of sale passed before one
Bonilla, a notary public, and that Laguerenne, on the 10th of
January, 1837, in the City of Mexico, executed before one Madriago,
a notary public, a power of attorney to Francisco Priolland, of New
Orleans, authorizing him to sell all and any real estate belonging
to Laguerenne, and that the latter, in pursuance of said power, did
sell the said eleven leagues on the 15th of February, 1837, to one
George L. Hammekin, by act of sale passed before one Caire, a
notary public of New Orleans. It was admitted that the defendants
had a regular chain of title from Hammekin.
The course of the trial was as follows:
The plaintiff first gave in evidence a duly certified
translation of the title of
Page 125 U. S. 403
Rabago, from the records of the General Land Office of Texas,
consisting of: (1) A testimonio of Rabago's application for the
grant, dated November 28, 1828, and of the concession made thereon,
dated December 2, 1828. (The above testimonio was dated December 2,
1828, and signed by the government secretary.) (2) The extension of
title, comprising the application for extension by S. M. Williams,
as attorney of Rabago, dated December 3, 1833; the approval of the
empressarios (of whom Williams was one); the order of survey; the
field notes of the survey, etc.; concluding with a formal patent.
This expediente was endorsed as filed in the land office June 7,
1875. The plaintiff then proved the death of Rabago, and deduction
of title from Rabago's heirs to himself, and rested.
The defendants, preparatory to offering their documentary
evidence of title, including, among other things (1) the said
protocol, or first original, of Rabago's application for the grant,
with his signature thereto, and the original concession made to him
thereon (2) the original power of attorney, above mentioned, from
Rabago to Blanco (3) the act of sale from Rabago, by his attorney
Blanco, to Laguerenne (4) Laguerenne's power to Priolland (5)
Priolland's act of sale to Hammekin, submitted the following
evidence, to-wit: The depositions taken at Saltillo, Mexico, in
August, 1881, of Jose M. Musquiz, Secretary of State of Coahuila,
and
ex officio custodian of the archives relating to land
grants in Texas, and of Estaban Portilla, keeper in charge of said
archives, who identified the paper produced by the defendants
purporting to be such protocol, or first original, of Rabago's
application, found, as they testify, among the said archives in the
proper office in Saltillo, and which, by the law of the state,
might be allowed to go out of the office by the permission of the
governor; also, the depositions of ex-Governor E. M. Pease, of
Austin, Texas, and of Andrew Neill, a notary public of the same
place, who testified that they were familiar with the signatures of
Viesca and Del Valle by having often seen
Page 125 U. S. 404
them as affixed to the public archives, laws, and records of
Coahuila and Texas, deposited in the public offices of the State of
Texas, and believed their signatures to the purported original
concession, attached to said application, to be their genuine
handwriting. The defendants also gave in evidence the testimony of
John Willett to the effect that he procured the said protocol in
Saltillo, for the use of the counsel of the defendants, by the
courtesy of the Governor of Coahuila, and of the Secretary,
Musquiz, upon giving his bond for its return. It was also in
evidence that Rabago was in Saltillo (which is the same as Leona
Vicario) in person when the original concession was granted, and
brought the testimonio home with him, and the interpreter testified
that the application and concession in the certified copy put in
evidence by the plaintiff is a good translation of the document
produced by the defendants.
The defendants then gave in evidence the testimony of William H.
Williams, son of Samuel M. Williams, born in 1833, and of M. E.
Klieberg, of Galveston, tending to prove that the said paper,
purporting to be the original power of attorney from Rabago to
Blanco, of which a copy has been given, was found in 1876 by said
Klieberg, after a search therefor at the request of said William H.
Williams in behalf of General Thomas Harrison, one of the
defendants, in an old leather trunk that had belonged to said
Samuel M. Williams, of whose papers said William H. Williams was
custodian, and which trunk contained old miscellaneous papers of
said Samuel relating to occurrences before the year 1836, and had
always been in said Williams' possession since his father's death
in 1858; that the paper in question was an old-looking paper; that
the trunk contained several letters and documents signed by Victor
Blanco, and that said paper, with said letters and documents, were
delivered to Gen. Harrison.
The defendants also gave in evidence the testimony of George L.
Hammekin, taken before a notary in November, 1876, who stated that
he purchased the land in controversy about forty years before, in
the City of New Orleans, from Francisco Priolland, acting as
attorney for Guillermo Laguerenne,
Page 125 U. S. 405
and had in his possession for a long time a paper purporting to
be a copy of a power of attorney from Miguel Rabago to Victor
Blanco, and had it then (while testifying); that it was dated
Monclova, 8th June, 1832; first saw it in 1837 or 1838; that
Laguerenne was a Frenchman or an American; that the land was sold
to him May 25, 1836, and by him to witness February, 1837. The copy
referred to by the witness was annexed to his deposition, and
exactly corresponded with the paper propounded by the defendants as
the original. It had annexed to it a certificate, of which the
following is a translation, to-wit:
"I, the undersigned notary, do certify that the foregoing copy
is, to the letter, the same as the original power that Don Victor
Blanco has presented to me, and the same that I had before me when
making out the bill of sale, that on the 25th day of May, 1836,
made by virtue of it to Don Guillermo Laguerenne, of eleven sitios
of land situated in the Department of Texas, on the west side of
the Brazos River, above the road that leads from the Town of
Nacogdoches to Bejar, as it appears in the public records in my
charge. And so that this be of value wherever required, and at the
request of the party interested, I issue duplicates of the present
in Mexico, the 17th day of March, 1837, being witnesses Dn. Rafael
de Revilla, Dn. Teofilo Carreno, and Dn. Felipe de Revilla
Olivares, of this community."
"[Signed] MIGUEL DIEZ DE BONILLA"
"
Notary Public"
The defendants also gave in evidence the further testimony of
said Hammekin, taken by deposition on the 26th of March, 1880,
wherein he says:
"I have had the following title papers of the Rabago grant in my
possession: 1st. Testimonio, or second original, issued in name of
Miguel Rabago. 2. A letter of attorney from Miguel Rabago to Victor
Blanco. 3. Sale by Victor Blanco as attorney for said Rabago to
said Laguerenne. 4. Power of attorney from said Laguerenne to
Francis Priolland. 5. Sale by said Priolland to myself. "
Page 125 U. S. 406
"I received the above-entitled papers from Francis Priolland in
New Orleans at the time I made the purchase. I delivered them to my
agent, Robert Rose, and have not seen them since. I saw today the
original power of attorney from Rabago to Blanco. I have seen
Blanco's signature frequently before and after I left Mexico. I
know Victor Blanco's signature because I have seen it on many
papers having no reference to the Rabago grant. It appears on the
said original power of attorney, subscribed to the transfer made to
Samuel May Williams. I believe the transfer is in Blanco's
handwriting, and I know the signature is his. I had a copy of said
power certified before and by Mig'l Diez de Bonilla in the City of
Mexico. I also had a copy of this copy."
The witness stated that this last copy was delivered by him to
Gen. Harrison, and that the original testimonio of title was
deposited by him in the General Land Office at Houston in 1873.
These papers were offered in evidence by the defendants, the said
copy of the power being shown to be an exact copy or counterfeit of
the purported original power. The witness further stated that he
and his vendees had exercised acts of ownership on this
eleven-league grant, and claimed it, certainly since May, 1838, and
stated the manner in which such acts of ownership had been
exercised.
Hammekin further testified in another deposition that the
original act of sale from Rabago by Victor Blanco to Laguerenne,
dated May 25, 1836, which was given to the witness by Priolland
when he purchased the land in 1837, was executed before Miguel Diez
de Bonilla, a notary public in the City of Mexico; that he knew the
signature of said officer and recognized his signature to said act
of sale as his genuine signature because he had often employed
Bonilla during his (witness') residence in Mexico from 1831 to
1836; that he delivered it to Robert Rose, his attorney and agent,
in 1850, and had not seen it since. He also stated that he had then
in his possession, 1st, a legal copy of the original testimonio of
title to Rabago, followed by a petition to Judge Alltors by
Guillermo Laguerenne for the same, and a certificate signed by
Miguel Diez de Bonilla, and the certificate of the American
Page 125 U. S. 407
consul; 2d, a simple copy of the sale from Rabago by Blanco to
Laguerenne, followed by a copy of the receipt of the treasurer of
the custom house of Mexico, for the alcabala from said Laguerenne.
These papers were attached to the deposition. The certificates are
dated in the year 1836. To show the loss of the paper given by
Hammekin to his agent, Robert Rose, the defendants produced as a
witness John N. Rose, who testified that Robert Rose was his
brother, was a lawyer, and died in Washington City in May, 1871,
and that he (John) was Robert's administrator, and had charge of
all his papers, and had several times searched for, and failed to
find, the following papers,
viz., 1st, the deed from
Rabago, by his attorney Blanco, to Laguerenne, 2d, the power of
attorney from Rabago to Blanco, dated the 8th of June, 1832, 3d,
the power of attorney from Laguerenne to Priolland, executed in
Mexico, January 10, 1837.
The defendants also gave in evidence the testimony of several
witnesses tending to prove that they and those from whom they
derived title had constantly exercised acts of ownership over the
land in question from the time of the origin of their title by
paying the taxes, filing the muniments of title, surveying the
tract into parcels, selling to settlers, leasing to tenants,
compromising with persons who got unauthorized possession of
portions of the land, etc., and that by these means the tract had
become largely settled, and many valuable improvements had been
erected thereon.
E. D. Conger testified on the stand that he is one of the
defendants in this case, and was one of the purchasers from Gen.
Harrison; that before they purchased, they had the title examined
by competent attorneys, and bought on the faith of their opinion as
to the title; that they never heard of any adverse claim until the
institution of this suit; that the land bought by the Congers was
the remnant of the grant after the best parts of it had been sold
off; that they have paid taxes on the land regularly since they
have purchased it; that there were about one hundred settlements on
the eleven leagues when they purchased, but none on the part they
purchased.
The defendants also introduced in evidence:
Page 125 U. S. 408
1st. A certificate from the Comptroller of the state showing
that Robert Rose, as agent for G. L. Hammekin, rendered for taxes
for the years 1854 to 1859, both inclusive, 48,700 acres of the M.
Rabago grant in McLennan County, and that the records do not show
that there were any other assessments made for those years.
2d. An original lease from A. M. Hughes to William Graham to the
Neville league on said grant, dated May 24, 1854. It recites that
Hughes is acting for Robert Rose, the agent for Mr. Goodrich, who
claims the Rabago eleven leagues of land. Also, a transfer from of
this lease, dated October 17, 1854.
3d. A power of attorney from George L. Hammekin to Robert Rose,
dated May 24, 1855, recorded in the records of McLennan County,
April 28, 1857. It is a general power to prosecute, sue for,
recover, and establish his claim to lands situated in different
parts of Texas. To compromise with settlers, and sell.
4th. Docket of the District Court of McLennan County, showing
the suits about the land before the war, styled
Hammekin v.
Graham, and
Hammekin v. Bell.
The original act of sale from Rabago, by Blanco, to Laguerenne,
purchased by the defendants as aftermentioned, recites that the
sale was made under a "letter power," which the officer saw, read,
and returned to the party, Blanco. It was in evidence that Rabago
was a citizen of the State of Coahuila, and that he and his family
lived there all their lives. The original testimonio of the title,
dated January 13, 1834, which Hammekin testified was delivered to
him by Priolland, when he bought in 1837, was also put in evidence
by the defendants.
Other evidence referred to in the charge of the court need not
be adverted to here.
After the introduction of the foregoing evidence, the defendants
offered in evidence, as a part of their title, the said protocol,
or first original, of Rabago's application for the said
eleven-league grant, and of the concession made thereon, dated
respectively the 28th of November and the 2d of
Page 125 U. S. 409
December, 1828. The plaintiff objected to its admission on the
following grounds:
1st. That it is irrelevant, and forms no part of the defendants'
title.
2d. The paper, if genuine, is an archive of a foreign
government, and from public policy cannot be introduced in our
courts, but only a lawfully certified and examined copy can be
introduced.
3d. The custodian shows that he holds it by virtue of a foreign
law, which is not properly proven.
4th. But if the paper be admitted, then it is objected to for
purposes of comparison of handwriting, for which object alone it is
introduced, because
First, it is not such a paper as was required to be signed by
Rabago, and no presumption can arise that it was so signed by
reason of its being an archive or ancient document.
Second, there is no evidence of the handwriting's being that of
Rabago.
Third, it is not admitted nor proven to be the genuine
handwriting of Rabago.
Fourth, the instrument with which it is to be compared is not so
old but that living witnesses to the questioned signature can be
and are actually introduced.
The court overruled these objections and permitted the paper to
go the jury for all purposes, subject to be controlled by his
charge as to its being a standard of comparison for the handwriting
of Miguel Rabago. To this ruling the plaintiff excepted.
The plaintiff then offered evidence to rebut that adduced by the
defendants as to the genuineness of the alleged protocol, to-wit,
the testimony of Antonio Garcia Corillo and Ramon L. Flores, the
purport of which was that Flores, then Chief Clerk of the
Department of State at the request of Corillo had searched the
archives in 1874 for everything relating to the Rabago grant, and
had not found the document now produced by the defendants. The
court still adhered to its ruling to admit the document in
evidence.
This raises the first question in the cause, namely whether
Page 125 U. S. 410
the protocol, or first original, of the application and
concession, belonging to the public archives of the State of
Coahuila at Saltillo, is admissible as evidence. The court below
decided that it was, and we have difficulty in seeing any reason
why it should not be. It is true that the testimonio given out to
the interested party is a second original, and is treated as an
original, and may be admitted in evidence as such; but it does not
take away from the validity and faith of the first original. The
latter may always be resorted to for the purpose of correcting any
errors in the testimonio. It is true, it may be deemed a matter of
public policy in some states to prohibit public records from being
removed from their places of deposit; but if their removal is
allowed, or in any legitimate way effected, they certainly
constitute the best evidence of their contents and authenticity. No
public policy could have been contravened in the present case but
that of the State of Coahuila or the Republic of Mexico. If the
authorities of Coahuila allowed the removal of the protocol in
question, we do not see what objection could be made by the courts
of Texas or of the United States. On general grounds, there is no
valid objection to its admissibility. Though by the practice of the
courts a certified or sworn copy of a record of another court may
suffice, it is not unusual for the record itself to be brought in.
In 2 Taylor on Evidence § 1377, it is said:
"The general records of the realm, which are placed under the
custody of the Master of the Rolls, may be proved by copies
purporting to be verified by the deputy keeper of the records, or
one of the assistant recordkeepers, and to be sealed and stamped
with the seal of the record office, and in cases of importance
before the House of Lords, or elsewhere, permission will be given
to one of the assistant keepers to produce the original
record."
In § 1378 it is also said:
"The records of the superior courts may either be proved by the
mere production of the originals or, as this course would be highly
inconvenient to the public if generally adopted, since it might
lead to mutilation or loss of valuable documents, they may be
proved by means of copies. Of these there are four kinds,
viz., exemplifications under the great seal,
exemplifications
Page 125 U. S. 411
under the seal of the particular court where the record remains,
office copies, and examined copies."
This shows that originals are admissible as evidence if properly
authenticated. We do not see how it could well be more
satisfactorily authenticated than it was -- namely by the
certificate annexed to it by the Secretary of State of Coahuila and
by the actual identification of it made by the said secretary and
his keeper of records when examined as witnesses in the cause. The
objection that it was irrelevant is certainly untenable. It was one
of the links in the defendants' chain of title. They were not bound
to rest on the testimonio of the same document introduced in
evidence by the plaintiff, nor on that introduced by themselves.
They were entitled, if they chose, to put in the very original
itself, even if it were cumulative evidence. As to the uses to
which it might be applied, being admissible as evidence, it might
go before the jury, and be used, under the charge of the court, for
all legitimate purposes in the cause. It was certainly available as
a link in the defendants' chain of title, if for nothing more.
The defendants contended that the signature purporting to be
that of Rabago, appended to the application, might be examined by
the jury as a standard of comparison of Rabago's handwriting, on
the question whether the signature purporting to be his on the
other paper -- namely the power of attorney from Rabago to Victor
Blanco, was genuine or not. This was resisted by the plaintiff on
the grounds stated above, and, before the cause went to the jury,
the plaintiff requested the court to charge that at the date of the
signature to the application, the law did not require it to be
signed by Rabago, and that it should only be considered as one of
the links in the chain of defendants' title, and not for the
purpose of comparison of handwriting, and that the jury should not
consider such signature as the signature of Rabago for that
purpose. The court refused to give this instruction, and the
plaintiff excepted, and the court then charged the jury on this
point as follows, to-wit:
"The defendants have also offered a paper which purports to be
the original application of Miguel Rabago for this concession,
Page 125 U. S. 412
which purports to be signed by said Rabago in person -- that is,
by himself, and have offered proof to the effect that this paper
came from the office of the archives at Saltillo, which is the
proper custody for said original application and decree, and to the
effect that the signatures of Governor Viesca and of the Secretary
are genuine, with proof as to the circumstances of the finding said
paper, and manner [of] keeping said archives, and if you believe
from the proof that said paper so offered by the defendants is as
old as its date imports, that it has been preserved in the archives
as the initial paper connected with this grant, you may give these
circumstances the weight of direct testimony to the genuineness of
said signature, and if the other proof in the case does not, in
your judgment, overbear this weight, you may find the signature to
this original application to be the proved signature of Miguel
Rabago, and use it as a standard of comparison to aid you in
determining the genuineness of the signature to the writing
purporting to be a letter power from said Rabago to Victor
Blanco."
To which charge of the court the plaintiff's counsel objected
and excepted for the following reasons:
1st. The charge is upon the weight of evidence.
2d. It submits to the jury a question which should be decided by
the court.
3d. It submits to the jury a paper for the comparison of
handwriting which is neither proven nor admitted to be genuine, nor
to be signed by the genuine signature of Miguel Rabago.
The first and second reasons are certainly not well assigned.
The charge does not take from the jury the determination of the
weight of the evidence; nor does it submit to the jury a question
of law determinable only by the court. Whether the signature
appended to the application, purporting to be Rabago's, if the jury
believe it to be his, might legally be used by them as a standard
of comparison, to aid them in determining the genuineness of the
signature to the writing purporting to be a letter power from
Rabago to Blanco, is the important question arising upon the
charge.
Page 125 U. S. 413
It is well settled that a witness who only knows a person's
handwriting from seeing it in papers produced on the trial, and
proved or admitted to be his, will not be allowed, from such
knowledge, to testify to that person's handwriting, unless the
witness be an expert, and the writing in question is of such
antiquity that witnesses acquainted with the person's handwriting
cannot be had. Greenl. on Ev. § 578. It is also the result of the
weight of authority that papers cannot be introduced in a cause for
the mere purpose of enabling the jury to institute a comparison of
handwriting, said papers not being competent for any other purpose.
Greenl. on Ev. §§ 579, 581. But where other writings, admitted or
proved to be genuine, are properly in evidence for other purposes,
the hand writing of such instruments may be compared by the jury
with that of the instrument or signature in question, and its
genuineness inferred from such comparison.
Griffith v.
Williams, 1 Crompton & Jervis 48;
Doe v. Newton,
5 Ad. & El. 514;
Van Wyck v. McIntosh, 14 N.Y. 439;
Miles v. Loomis, 75 N.Y. 288;
Medway v. United
States, 6 Ct.Cl. 421;
McAllister v. McAllister, 7
B.Mon. 269; 1 Phil. on Ev., 4th Amer. ed. 615; 1 Greenl. Ev. § 578.
The history of this last rule is well stated in
Medway v.
United States, qua supra. In
Griffith v. Williams, it
was stated by the court that
"Where two documents are in evidence, it is competent for the
court or jury to compare them. The rule as to the comparison of
handwriting applies to witnesses who can only compare a writing to
which they are examined with the character of the handwriting
impressed upon their own minds; but that rule does not apply to the
court or jury, who may compare the two documents when they are
properly in evidence."
In
Doe v. Newton, Lord Denman said:
"There being two documents in question in the cause, one of
which is known to be in the handwriting of a party, the other
alleged, but denied, to be so, no human power can prevent the jury
from comparing them with a view to the question of genuineness, and
therefore it is best for the court to enter with the jury into that
inquiry, and to do the best it can, under circumstances which
cannot be helped."
The other judges expressed
Page 125 U. S. 414
substantially the same view. "The true rule on this subject,"
said Justice Johnson in
Van Wyck v. McIntosh, 14 N.Y. 439,
442,
"is that laid down in
Doe v. Newton that, where
different instruments are properly in evidence for other purposes,
the handwriting of such instruments may be compared by the jury,
and the genuineness or simulation of the handwriting in question be
inferred from such comparison. But other instruments or signatures
cannot be introduced for that purpose."
See Amer. note to
Griffith v. Williams, 1 Cr..
& Jerv. 47, Phil.Ed.
This rule is not contravened by the decisions of the Supreme
Court of Texas or of this Court. The leading case in Texas on
comparison of handwriting is
Hanley v. Gandy, 28 Tex. 211,
which only decides that other papers not connected with the cause
cannot be introduced for the mere purpose of instituting a
comparison of handwriting. No case decides that a signature to be
proven cannot be compared by the jury with other papers or
signatures of the party properly in evidence in the cause.
Strother v.
Lucas, 6 Pet. 763, the leading case in this Court,
relates to the competency of a witness to testify as to the
genuineness of a signature without having any knowledge of the
party's handwriting, and the Court held that such evidence was not
admissible. The case of
Moore v. United States,
91 U. S. 270,
affirms the rule in question in cases where the paper used as a
standard of comparison is admitted to be in the handwriting of the
party, or where he is estopped from denying it to be so; it does
not disaffirm the rule as applied to cases where the standard is
clearly proved to be in such handwriting. In that case, the paper
referred to as the standard of comparison was the claimant's power
of attorney given to his attorney in fact by virtue of which the
latter presented his case to the Court of Claims. It was held that
he was estopped from denying that the signature to the power was in
his had writing. The present case is quite similar to that. The
plaintiff himself claims title under the very application of
Rabago, the signature to which is claimed to be a proper standard
of comparison of Rabago's handwriting. Is he not estopped from
denying it to be Rabago's hand? His counsel say that
Page 125 U. S. 415
at that period of time the application did not require the
party's signature. Even if this be so, still it is proved that
Rabago was at Saltillo at the time the application was made, and it
purports to be signed by him, and not by any person for him; and if
the document is the real protocol of the application as presented,
it is to be presumed at least until the contrary is shown, that the
signature which it bears is the real signature of Rabago. Whether
the document is not the real protocol of the application, as
presented, was fairly left to the jury, under the circumstances and
evidence of the case; which, we may add, were so strong and
convincing that the jury would not have been justified in finding
in the negative. The evidence, indeed, was such as abundantly to
satisfy the condition that the paper referred to as a standard of
comparison must be clearly proved to be genuine. We think that the
charge of the court was right.
The defendants next offered in evidence, as an ancient
instrument, the alleged original power of attorney from Rabago to
Victor Blanco, found by the witness Klieberg in the old trunk at
Galveston, a copy of which, with the endorsements thereon, has been
already given. The plaintiff objected to its admission for the
following reasons, to-wit:
First. Having been in the trunk since March, 1836, it could not
have been the instrument by virtue of which title passed from
Rabago in the City of Mexico, by deed from Blanco to Laguerenne on
the 25th of May, 1836.
Second. The recitals in the deed contradict the evidence of
Williams and Klieberg, under whose testimony it is introduced.
Third. It cannot be introduced as an ancient instrument,
because
1st. No possession was ever held under it, it not coming to the
possession of the defendants for forty years after its
execution.
2d. It is suspicious on its face by reason of not being
acknowledged, certified to, witnessed, nor written on sealed
paper.
3d. It does not come from the proper custody.
Fourth. It is not such an instrument as would have passed title
to land in 1832 or in 1836.
Page 125 U. S. 416
1st. It is not acknowledged, witnessed, certified to, nor
written on sealed paper.
2d. No summons was served upon the grantor to appear before an
official for the purpose of rendering it an authentic or judicial
act.
Fifth. The power to Blanco, if any, could not pass an equitable
title, if any, which could not be cognizable in a court of law.
Sixth. It is not made part of the Laguerenne deed.
Seventh. If it conveyed any power, it was divested out of and
from Blanco by the endorsement and delivery to Samuel May Williams
in 1833.
Eighth. It appears to have been executed, if at all, before six
years from the issuance of the concession, and does not bind the
attorney nor his vendees to cultivate the land.
Ninth. If genuine, it was revoked by the war of 1835, the
revolution between Texas and Mexico, and the Constitution of March
17, 1836.
Tenth. It cannot act as power to make a parol or verbal sale,
because no possession was taken under it within a reasonable
time.
These objections were overruled, the paper admitted in evidence,
and the plaintiff excepted; this being the fourth exception taken
at the trial. The objections made against the admission for the
paper seem to be either entirely unfounded, or trivial in their
character. It is not testified by William H. Williams that it had
been in the black trunk ever since March, 1836; he could not know
such a fact, for he was only born in 1833. He only says that it was
probably placed in the trunk by his mother at the time of the
"runaway scrape" (which took place on the advance of Santa Anna in
March, 1836); that, from his mother's statements, she had his
father's papers with her at that time, and that she kept them until
her death, and the witness has kept them from that time until now;
that the trunk was either in his father's or mother's possession
until it came into his; that his earliest recollection of it was in
1840 at their house in Galveston, where it remained until 1859; but
that it was traditionally
Page 125 U. S. 417
known to witness to have been with the family at San Philipe de
Austin, and at Quintana, and afterwards at Galveston; that from
1836 to 1838, his father and mother lived at Quintana at the mouth
of the Brazos River.
There is nothing in this testimony inconsistent with the fact
that Blanco may have transmitted the paper to Samuel M. Williams
after the execution of the deed to Laguerenne, in Mexico, in May,
1836. As it was Williams' authority for taking possession of the
property, and not recited in the final title papers, he may have
wished it returned to him.
There is nothing in the recitals of the deed to Laguerenne
repugnant to the above hypothesis. That deed (which will be more
particularly mentioned hereafter) begins as follows:
"Before me, notary public and witnesses, Don Victor Blanco, in
name of Don Miguel Rabago, in virtue of letter power which has
conferred on him for various purposes, among which is comprised the
faculty that he can sell, and may sell, the lands which he has in
Texas, which he showed to me, which I have seen, read, and returned
to the party, and to it in his possession I refer -- said that the
aforesaid Don Miguel Rabago possesses,"
etc. [then proceeding in the usual form of an act of sale].
There is no recital here at all inconsistent with the testimony of
Williams or of Klieberg, and as the notary certifies that the power
was exhibited to him, Blanco had no occasion to retain it in his
possession. Besides, he was a near relative and friend of Rabago,
and did not require it.
The other reasons given for objecting to the admission of the
power are equally untenable. It is said that no possession was ever
held under it, it not coming into the defendant's possession for
forty years after its execution. This is not true. The possession
of the defendants, and of those whose title they hold, was always
under and by virtue of the instrument. If property passes through a
dozen hands in the course of forty years, each keeping in his own
possession the deed given to him, the possession of all is equally
under the first deed, which may be given in evidence as an ancient
deed, although never seen by any but the first grantee to whom it
was given. The
Page 125 U. S. 418
paper is said to be suspicious on its face, for want of
acknowledgment, etc., and that no summons was served on the grantor
to appear before an official to render it an authentic or judicial
act. It is enough to say that none of these things affect the
validity of the instrument, and the circumstances of the case and
of the time are sufficient (if any reason is necessary) to account
for the absence of these formalities. Besides, they relate more
especially to the effect of the instrument than to its
admissibility as an ancient document, and in that regard will be
examined under the seventh exception, hereafter considered. We see
nothing in the other objections to call for remark, except the one
that supposes the power was divested out of Blanco by the
endorsement and delivery to Samuel M. Williams. This is not so. The
endorsement merely gives Williams power to "take possession of the
eleven leagues." The power to sell was not transferred. This very
fact suggests the reason why the power was returned by Williams to
Blanco after the possessory title had been completed. Blanco would
want it for the purpose of enabling him to make a sale. The more we
consider the circumstances, the more clear it appears that the
evidence is entirely harmonious, and consistent with itself. We
think that the paper was property admissible as an ancient writing.
It is unnecessary to dilate on the subject of ancient documents in
general, and when they are admissible. We are of the opinion that
all the conditions of admissibility were satisfied in this
case.
But there is another reason why it is proper that we should so
hold. The case was once before the Supreme Court of Texas on an
appeal taken to set aside the verdict rendered on a former trial,
and that court held, under the same evidence used at the trial in
the circuit court, that the document was admissible in evidence as
an ancient one. If the action had originally been brought in the
circuit court upon proper jurisdictional grounds, and had been
tried as it was in the state court, and if, on a writ of error from
this Court, we had decided as the Supreme Court of Texas did -- we
should have felt bound by our first decision -- we would not have
allowed it to be questioned.
Clark v. Keith, 106 U.
S. 464. The
Page 125 U. S. 419
present case is in exactly the same category. The removal of the
cause from the state court does not put us in the position of a
court of review over the Supreme Court of Texas. When it acted, it
was the highest court that could act in the cause, and stood in
precisely the same position that we stand now. Its action must be
accepted by us as that of a court having plenary and final
jurisdiction.
By the fifth exception, objection is made to that portion of the
judge's charge in which he says:
"By the law in force at the time this letter power of attorney
purports to have been transferred to Samuel May Williams (April 3,
1833), authorizing him to solicit title to, and take possession of,
said eleven leagues, and at the time said Blanco made his deed to
Laguerenne, Blanco could have procured, if he desired, and retained
in his possession a legal copy of the power of attorney, which
would have all the force and effect of the original, and although
the original might at the time be in Samuel May Williams' trunk, in
Texas, Blanco's conveyance to Laguerenne would not on that account
be without authority if the said paper in Williams' trunk was a
genuine paper giving him such power. Such power, if conferred, was
conferred on the one named, and remained with him, whether
evidenced by the original writing or such copy."
It is objected that there is no evidence that any attempt was
ever made by Blanco to obtain such a copy, and that none could have
been obtained, because the original had never been an archive of
any office. This same objection was before the Supreme Court of
Texas. That court seems to have adopted the hypothesis that
Williams never returned the power to Blanco, and that the latter
therefore did not return it to Williams after making use of it in
the sale to Laguerenne. The court says:
"Where should we have expected to find the instrument? Certainly
we would infer that is should have been placed by the commissioner
to whom it was presented, either with the papers pertaining to the
title which he issued for the land, or have been returned to the
party by whom it was presented to him. But as the title shows that
it was not incorporated into it, as is most usual when the power is
an authentic
Page 125 U. S. 420
act, we should expect to find it in the custody of Williams, in
whom the title and possession of it purports on its face to be
vested, or, if not, that he would have transmitted it to his
principal, Blanco. But as the latter appears to have taken the
precaution to have another power of like effect from Rabago, or to
have secured an official copy of this one before remitting it to
Williams, there was no necessity for its being returned to
him."
Certainly there is nothing unreasonable or improbable in the
hypothesis that the paper should have been executed in duplicate in
view of the fact that the possessory title to the land had yet to
be obtained, and some person in Texas would have to be authorized
to attend to it. We think therefore that the judge was justified in
making the charge he did, and that the jury could not have been
misled by it. The fact that Blanco had the original or a copy in
Mexico, on the 25th of May, 1836, does not detract from the force
of the presumptions in favor of the power found in the trunk.
The sixth exception was taken to that portion of the charge
which related to the evidence proper to be taken into consideration
on the question of the genuineness of the power of attorney and its
effect. The portion of the charge referred to is as follows,
to-wit:
"The defendants introduced testimony tending to show that, as
early as 1838, Hammekin had placed in his possession the deed from
Blanco to Laguerenne, referring to such a power of attorney; that
he insisted on having an authenticated copy of said power furnished
him; that very soon thereafter he received said copy of said power,
which he placed (with other title papers) in the hands of his
agent, retaining a copy made by said Hammekin, which copy has been
given you, declared by the interpreter to be identical (with
immaterial exceptions) in terms with the letter power offered by
defendants; that Hammekin had placed the testimonio in the land
office as required by law of persons having such evidence of title
to land in Texas; that said Hammekin paid the government dues on
said grant, had paid taxes, had sent agents on the land as early as
the growing settlement of the country so far freed this section of
the country from the hostile Indians as permitted its occupancy,
and
Page 125 U. S. 421
the assertion of ownership by assuming actual control of it, and
that Hammekin, and those to whom he conveyed, and the defendants
claiming under them, had continued to assert ownership to these
lands under said power of attorney, and if, in your judgment, said
proof establishes such facts, and the proof as to the age and
custody of the said letter power satisfies you that said paper is
as old as its date imports, and has been in the custody that said
evidence indicates, you may consider this proof equal to the direct
testimony of at least one witness to the signature of Miguel
Rabago, and unless, in your judgment, the evidence of plaintiff's
witnesses, and all the circumstances of these parties and these
transactions, as shown by all the testimony, proves that Miguel
Rabago did not sign said letter power, you will find said letter
power to be genuine, and return your verdict for the
defendants."
To this extract from the charge the plaintiff's counsel objected
--
"1st. Because it is a charge upon the weight of evidence."
"2d. It is, in itself, an incorrect statement of law."
The plaintiff's counsel seem to overlook the language of the
charge. The court did not say that such and such facts were proved,
but that the defendants introduced testimony tending to show such
facts, and left the testimony with the jury. Besides, we have
repeatedly held that the court may give to the jury its opinion on
the weight of evidence. We see no error whatever in the charge.
The seventh exception was taken to a portion of the charge which
instructed the jury that if the papers and documents relied on by
the defendants, and constituting their chain of title, were
genuine, they conclusively show that Rabago parted with his title
in his lifetime, and no right to it could pass to his heirs by
descent, and that the defendants, by reason of their right thus
acquired, would be entitled to a verdict. The ground assigned for
this exception was that the letter power of attorney was not such
an instrument as could convey land in Texas at that time, because
it was not an authentic instrument, being neither acknowledged,
witnessed, certified to, nor written on sealed paper, nor proved
before a notary,
Page 125 U. S. 422
and no summons was even served on Rabago to appear before an
official for the purpose of rendering it an authentic or judicial
act. We apprehend that the want of the formalities referred to
merely affects the mode of authenticating the instrument. If it is
passed before a notary public and witnesses, and is certified as a
testimonio, it is called an authentic instrument, and proves
itself. If not thus authenticated, it must be proved to have been
executed by the party to be charged with it.
Watrous v.
McGrew, 16 Tex. 509, 513;
Andrews v. Marshall, 26
Tex. 212;
Jones v. Montes, 15 Tex. 351, 352;
Chambers
v. Fisk, 22 Tex. 504;
Gonzales v. Ross, 120 U.
S. 605,
120 U. S. 624;
Hanrick v.
Barton, 16 Wall. 166,
83 U. S.
171-172. The appellant relies upon a passage in Escriche
(
verbo "Poder") where he says that a power of attorney is
to be made before a notary public, and to have certain formalities
described. But he there refers to the technical power called, in
the Spanish law,
poder or
procuracion, having
much the same meaning as our term "power of attorney," which
indicates a power or authority under seal. But the technical
poder is not the only form by which authority may be given
to act for another. A technical power, executed with all the
solemnities, is but one form of a mandate (
mandato,
mandamiento). Under the word
mandato the same
Escariche says:
"Mandate: A consensual contract by which one of the parties
confides the carrying on or execution of one or more matters of
business to the other, who takes it in his charge. . . . Mandate
has also the name of 'procuration' and the mandatary that of
'procurator,' but the word 'mandate' is more general, and
comprehends every power given to another, in whatsoever mode it be,
whilst procuration supposes a power given by writing."
Again:
"The mandate may be contracted between persons present or
absent, by words, by messengers, by public writing or private
writing, and even by letter, as likewise by act --
e.g.,
if a person, being present, allows another to transact his
business, etc."
See further, to the same effect, Azo and Manuel's
Institutes, Book II, Tit. XII; Tapia's Fabrero Novisimo, Book II,
Tit. 4, cc. 13, 14; Partida V, Tit. XII, L. 24.
Page 125 U. S. 423
In the present case, the parties were not in the same place.
Rabago resided in the State of Coahuila, and Blanco in the City of
Mexico, so that the making of the power in the form of a letter was
the very form allowed by the laws in such a case. As before said,
the only difference it made was in the proof necessary to
authenticate the instrument in legal proceedings. As to the
objection that this form was not sufficient to authorize an act of
sale, but that it required a power executed under the same
solemnities as the act of sale itself, we know of no such rule in
the Spanish of Mexican law. The English rule as to the requisites
of a power to execute sealed instruments has no application to the
case.
The eighth exception related to the admission in evidence of
Hammekin's copy of the power of attorney. He testified that when he
purchased the land from Laguerenne through Priolland, the latter
had no copy of the power from Rabago to Blanco, and he (Hammekin)
made it a condition that a copy should be furnished to him, and
that, soon after, he received a certified copy, which he delivered
to his agent, Rose, with the other papers, and with them has been
lost. He testified, however, that he took an exact copy of this
certified copy before giving the latter to Rose, and had it yet,
and it was in evidence in the case, and was found to be an exact
copy of the power found in the old trunk, with the exception of a
date being written in words at length in place of figures, and an
abbreviation being written in full words. This copy made by
Hammekin himself (called the "Hammekin Copy") is the paper whose
admission in evidence was objected to. The plain answer to the
objection is that it was not offered nor admitted as a muniment of
title, but merely to show the fact that there was such a paper in
existence in 1837 as that found in the trunk, which fact had a
legitimate bearing on the question whether the latter was an
ancient instrument. For this purpose, it was certainly
admissible.
The ninth exception related to the admission in evidence of a
copy of the deed or act of sale executed by Victor Blanco, as
attorney for Rabago, to Laguerenne, dated May 25, 1836,
Page 125 U. S. 424
and of a copy of a power of attorney given by Laguerenne to
Priolland to sell his real estate. The copies offered in evidence
by the defendants were certified copies. That of the deed of May
25, 1836, was taken in the City of Mexico from the original
protocol of the deed in the notarial archives or records of the
deceased notary, Miguel Diez de Bonilla, before whom the deed
purported to be executed. It appeared by the testimony of one
Crescencio Landgrave, a notary public of the City of Mexico, that
these archives, with those of other deceased notaries, had been
collected and placed in the public archives of the City of Mexico
under the charge of different notaries. Landgrave testified that he
had general charge of said archives, and the particular charge of
those of Bonilla, whom he knew and with whom he was intimate, and
that he knew Bonilla's signature appended to the different
documents in the archives, and in fact received them from his own
hands in his (Bonilla's) lifetime. He further testified that the
protocol of the deed from Rabago through Blanco to Laguerenne was
among the archives of Bonilla, and that he, as the custodian
thereof, made an official and duly certified copy of said deed
(which was the copy offered in evidence), the certificate annexed
to the copy being in the words following, to-wit:
"I certify and give faith that the preceding copy is faithful
and exact to the letter of the original document which exists on
folio 37 to folio 40 of the protocol of my deceased companion, Don
Miguel Diez de Bonilla, which I have under my custody in the
archives of the city which is under my charge, from whence the
present was taken in order to deliver it to the consul of the
United States of the North, in Mexico, by virtue of judicial
mandate, this 15th December, 1874, in presence of Don Miguel Moral
and Don Manuel Correo, of this vicinity. [Between parentheses:] All
not valid."
"[L. S.] [Signed] CRESCEN. LANDGRAVE"
The official authority of Landgrave is authenticated by the
certificates of three other notaries, of the Governor of the
Federal District, of the chief official of the Department of
Foreign
Page 125 U. S. 425
Affairs, and of the United States consul, each certifying to the
authority of the preceding.
Landgrave further testified that his brother in office, Notary
Public Antonio Ferreira, had charge of the records of the deceased
notary, Francisco Madriago, before whom the power of attorney from
Laguerenne to Priolland, before referred to, purports to have been
executed.
A certified copy of this power of attorney, certified by
Ferreira and authenticated in the same manner as the deed to
Laguerenne, was the copy offered in evidence by the defendants, the
power being dated January 10, 1837, and its protocol being among
the archives of the deceased notary, Francisco de Madriago. This
power of attorney authorized said Priolland to sell and dispose of
all and any real estate belonging to Laguerenne, wherever
situated.
It is unnecessary to examine in detail the reasons assigned by
the plaintiff for objecting to the admission of these papers in
evidence. We think that they were properly and sufficiently
authenticated, and that the judge committed no error in admitting
them.
The only other exception related to the citizenship of
Laguerenne. The plaintiff alleged that it was not shown that he was
entitled to convey land in Texas in May, 1837, but that he was
disabled to do so by reason of his being a citizen of France and an
alien to the government of Texas. The only direct statement as to
his citizenship is that contained in the said power of attorney
which he executed, and which begins as follows:
"In the City of Mexico, on the 10th day of January, 1837, before
me, [Madriago], a notary public and witnesses, personally appeared
Don Guillermo Laguerenne, a citizen, and of the commerce of this
place, in whom I have faith and know,"
&c. There is no testimony in the case sufficient to
overthrow the presumption arising from this recital. Hammekin says
that he does not recollect whether he was an American or a
Frenchman; that in May, 1836, he was established as a merchant in
the City of Mexico; that he had a brother in Philadelphia much
older than himself, who was a merchant in that city for many years.
This is all the evidence
Page 125 U. S. 426
on the subject. It must be received, therefore, that he was a
citizen of Mexico. As to citizens of Mexico, it is well settled
that they never lost the right of disposing of their Texas lands by
the division of the empire.
Airhart v. Massieu,
98 U. S. 491,
98 U. S. 493,
98 U. S.
497.
Having considered all the material questions raised by the
plaintiff in error, and being of opinion that he has not succeeded
in showing any error in the judgment of the court below, the same
is
Affirmed.