Sabariego v. Maverick

after stating the case, delivered the opinion of the court.

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

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

“ The documents upon the confiscation and sale are, therefore, authentic documents, and in their whole contents are entitled to full faith and credit. Thus, when the governor of Texas affirms in them that, by order of the commanding general, the property was confiscated, the affirmation is entitled to full faith afid credit. A direct proof by the introduction of a certified copy of the order of confiscation issued by the com-

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

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

“ III. The opinion of Don José Buiz de Aguirre, the ‘ asesor ’ [of the] intendancy of San Luis Potosi, and the decree of the intendant, Don Manuel de Acevedo, in which he concurs in the. opinion, are, as stated by the governor of Texas, in the beginning of his statement of September-19, 1817, founded on the fact that the confiscation of the property was effected by the order of the commanding general of the eastern provinces. As v ill subsequently appear, both the intendant and his ‘ asesor ’ were judges, and in these cases acted as judges; there is reason. therefore,' for affirming that, by a judicial resolution

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

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

In support of this conclusion counsel cite also the declarations of this court in cases supposed to be similar, and reference is made to that of the United States v. Arredondo, 6 Pet. 691 . That ciTse related to the validity of a Spanish grant of title to lands in Florida as affected by the treaty between Spain and the United States of 1819, and the question was as to the effect of the documents in evidence to show a grant of its own public lands by the Spanish government, entitled to be recognized as valid under the treaty with this country.. Speaking to that point, this court said (p. 727) : “ It is thus clearly evidenced by the acts, the words, and intentions of the legislature that, in considering these claims by the special tribunals, the authority of the officer making the grant or other evidence of claim to lands formed no item in the title it conferred; that the United States never made that a point in issue between them and the claimants to be even considered, much less adjudicated. They have submitted to the principle which prevails as to all public grants of land, or acts of public officers in issuing warrants, orders of survey, permission to cultivate or improve, as evidence of inceptive and nascent titles, which is, that the public acts of public officers, purporting to be exercised in an official capacity and by public authority, shall not

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

• The law on this subject was stated by this court in its opinion delivered by Mr. Justice Story in Carver v. Astor, 4 Pet. 1 , 83, as follows : “ It is laid down generally that a recital of one deed in another binds the parties and those who claim under them. Technically speaking, it operates as an estoppel,

So in United States v. Ross, 92 U. S. 281 , this court, speaking by Mr. Justice Strong on this point, said (p. 284): “ Because property was captured by a military officer and sent forward by him, and because there is an unclaimed fund in the treasury derived from the sales of property of the same kind as that .captured, because omnia prmwrrmntur rite esse dota, and officers are presumed to have done their duty, it is not the law that a court can conclude that the property was delivered by the military officer to a treasury agent, that it was sold by him, and that the proceeds were covered into the treasury. The presumption that public officers have done their duty, like the presumption of innocence, is undoubtedly a legal presumption, but it does not supply proof of a substantive fact. Best, in'his Treatise on Evidence, § 300, says: ‘The true principle intended to be asserted by the rule seems to be, that there is a general disposition in courts of justice to uphold judicial and other acts rather than to render them inoperative; and with this view, where there is general evidence of facts having

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

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

It is admitted that, by the provisions of the Spanish law in force at the time, confiscation of property as a punishment for the crime of treason could only be effected by regular judicial proceedings. The text cited on that point is Ley 4, tit. 7, lib. 12, of the Novísima Becopilacion, as follows : “ It is not our will that such persons should forfeit their property and offices without having first been heard and found guilty, and let the laws of our kingdom be observed in such case, unless their treason or evil deed be notorious.” The authority of the king to take cognizance of cases of confiscation as a punishment for treason was entrusted in the Spanish colonies to other functionaries designated for the territory of New Spain, which subsequently became the Mexican Bepublic, in the Beal Ordenanza, or Boyal Ordinance, for the establishment and

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

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

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

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

“ Article 77 also says, in order that the mandates of the intendants be complied with in relation to this matter (the Department of Finance) apd to that of War, . . . they shall

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

“In this latter capacity their functions were exceedingly comprehensive. The intendants were Chief Justices in their provinces, and were entrusted with the jurisdiction which formerly belonged to the corregidores and chief alcaldes (Art. 11). Article 21 specifies the laws to which, in the administration of justice, they ought to subject themselves. Articles 22 and 2S confer upon them the power of supervision and vigilance over the other justices of the province.

“Each intendant should have a ‘Teniente Letrado’ — a deputy versed in law. The powers of this ‘ Teniente Letrado,’ as a judicial functionary, had a dual character (Art. 15). By himself, in civil and criminal cases, he exercised contentious, jurisdiction; in this point of view he was independent of the intendant's court, and his sentences were appealed from before the audiencia (Art. 19). But, besides this, he was ‘asesor’ (adviser) of the intendant; in this capacity all the intendancy’s business," whether administrative or judicial, wherein a legal question was involved, was referred to him for his opinion to

Article 82 of the Ordenanza provides as follows:

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

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

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

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

In the present case it is shown by the documents’ that the governor of Texas instituted the proceedings in the condition in which the confiscated property was in 1817. The purpose of this procedure was to effect the sale of the property as confiscated. Under Article 77 it pertained to him to institute it; but the sentence that had to be pronounced, as to whether or n'ot it must be sold, whether or not there was a legal causé for sale, and whether or not the condition of the property was such as to require a sale, was- a judgment which could only be pronounced by the intendant after having heard his ‘ asesor.’ The intendant and his ‘ asesor,’ therefore, in the determination of this point, were called upon to inquire whether the confiscation was legal, or, in other words, whether a competent

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

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

In considering this question further, it is to be remarked that the documents under consideration do not even expressly recite that any judicial proceeding whatever was had against Miguel Losoya charging him with treason, that he ever had notice of such an accusation, or an opportunity to appear and defend against it; or, in the alternative, that his offence was found to be notorious, so as to dispense with any other notice -than that given by the actual seizure of his property as the proper subject of confiscation. Nor in fact is it expressly stated that there had been any official seizure of the property for purposes of confiscation in any judicial proceeding. All these are the matters the existence of which we are asked to infer from the simple fact, which these documents do attest, that the property of Miguel Losoya was sold to Garcia by order of the intendant of San Luis Potosí, as though it liad been regularly proceeded against and adjudged to be confiscated. In the absence of any positive provision of the local law to the contrary, we are bound to determine this question upon those principles of right reason and abstract justice which are recognized in our own system of jurisprudence. The presumption to which we are asked to resort for ah answer to the question is, however, not peculiar to any system of law. It is found in the law of all civilized States, and the phrases in

We are asked to assume that Miguel Losoya was guilty of the offence of treason against the King of Spain, and that he was so adjudged in regular judicial proceedings, on the basis of which conviction his property was officially seized and confiscated ; and this we are asked to do as a judicial tribunal, sitting in a case wherein we are called to apply and administer the laws of Mexico, our government being the successor of that republic, as the republic was the successor of the Spanish government, in order to justify the taking of Miguel Losoya’s property and transferring it to another for the sole offence on . his part of assisting to achieve the independence of his own' country, whose justice is now invoked against him. If we had before us an actuahand formal decree of a competent tribunal adjudging him guilty of the offence, and confiscating, his property in punishment therefor, that of itself would not be sufficient to establish its own validity. We should still require record evidence of the existence of those facts which brought him and his property within the jurisdiction of the tribunal pronouncing such a decree. “Wherever one is assailed in his person or his property,” said this court in Windsor v. McVeigh, 93 U. S. 274 , 277, “there he may defend, for the liability and the right are inseparable. This is a principle of natural justice, recognized as such by the common intelligence and conscience of all nations. A sentence of a court pronounced against a party, without hearing him or giving him an opportunity to be heard, is not a judicial determi

This was said, it is true, of the effect to be given in our courts to the decree of a court in a foreign jurisdiction. But the rule is the same in "regard to domestic' judgments, the 'records of which, to be effective as evidence, must show upon their face a case within the apparent jurisdiction of the court. If the mere .decree and sentence of a court standing by itself, without the record of those prior proceedings necessary in law to support the judgment, is not receivable in evidence as proof

The statement made by Captain Don Francisco del Prado y Arce in the inventory dated October 27, 1814, that the property described in the list was confiscated by order of the commanding general, Brigadier Joaquin de Arredondo, while, as contended, it may be regarded as an affirmation on his part of the fact connected with the exercise of his public functions, is nevertheless not a certificate of the fact which he was by law authorized to. make as proof of its existence. So when the governor of Texas forwards that inventory to the intend-ant of San Luis Potosi, and in his communication states that the property had been sequestered from the insurgents, who, in 1811, took part in the revolution in Texas, it is a mere narration of a fact supposed to exist by him on the authority of others, and not by virtue of any lawful authority on his part to certify to its truth. Neither can the opinion of Don José ’Ruiz de Aguirre, the £ asesor ’ of the intendancy of San Luis Potosi, and the order of the intendant, Don Manuel de •Acevedo, concurring in the opinion, be regarded as a judicial finding of the fact that the property had been confiscated by the order of the commanding general of the eastern provinces. It is not shown, and is not pretended, that these officers had any authority under the law to pass judicially upon the question of the fact or the regularity of proceedings for confiscating the property of offenders, which must have' taken place within the jurisdiction of another and a superior amthority; nor is anything to be inferred from the fact recited that a report of the decision of these functionaries should be forwarded to the commanding general. It does not appear as a fact that they were laid before him, or were approved by him, and if they had been, his approval could not be construed to extend beyond the formal regularity of their proceedings in the sale. Notwithstanding all these recitals, and the infer

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

There are certain departments of scientific knowledge where an entire series of facts or forms may always be inferred from the existence of any one, according to the maxim ex Pede Her clem. The conclusion in such cases is deduced from the observed uniformity of physical nature, which by a necessity of our own minds we believe to be invariable. But this mode of reasoning has but a very limited application in the law of evidence as judicially applied to ascertain the facts and motives of human conduct. It is the foundation of the doctrine of presumptions to the extent to .which they are admitted, the limits of which in its application to the circumstances of this case we have already considered. The principal fact in con

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

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

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

This is also the. rule of the common law as declared by this court in the case of Christy v. Scott, 14 How. 282 , where it was applied to a case from Texas arising under a Mexican title. The court, speaking by Mr. Justice Curtis, (p. 292,) said: “According to the settled principles of the common

This rule is founded upon the presumption that every possession peaceably acquired is lawful, and is sustained by the policy of protecting the public peace against violence and disorder. But, as it is intended to prevent and redress trespasses and wrongs, it is limited to cases where the defendants are trespassers and wrongdoers. It is, therefore, qualified in its application by the circumstances which constitute the origin of the adverse possession, and the character of the claim on which it is defended. It does not extend to cases where the defendant has acquired the possession peaceably and in good faith, under- color of title. Lessee of Fowler v. Whiteman, 2 Ohio St. 270 ; Drew v. Swift, 46 N. Y. 204 . And in the language of the Supreme Court of Texas in Wilson v. Palmer, 18 Texas, 592, 595, “The evidence must show a continuous possession, or at least that it was not abandoned, to entitle a

To the same effect ar¿ the cases of Jackson v. Walker, 7 Cowen, 637; Jackson v. Denn, 5 Cowen, 200. In Smith v. Lorillard, 10 Johns. 338 , 356, Kent, Chief Justice, said: “A prior possession short of 'twenty years, under a claim or assertion of right, will prevail over a subsequent possession of less than twenty years when no other evidence of title appears on either side. There are many decisions of this court which look to this point. Jackson v. Hazen, 2 Johns. 22 ; Jackson v. Myers, 3 Johns. 388 ; Jackson v. Harder, 4 Johns. 202 . It is, however, to be understood in the cases to which the rule of evidence applies, that the prior possession of the plaintiff had not been voluntarily relinquished without the a/nimus revertendi, (as is frequently the case with possessions taken by squatters,) and that the subsequent possession of the defendants was acquired by mere entry, without any lawful right. That the first possession should in such cases be the better evidence of right seems to be the just and necessary inference of law. The ejectment is a possessory action, and possession is always presumption of right, and it stands good' until other and

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

It therefore appears that prior possession is sufficient to entitle a party to recover in an action of ejectment only against a mere intruder or wrongdoer, or a person subsequently entering Avithout right. Another qualification of the rule is, that the action to regain the prior possession must be brought within a reasonable time after it has been lost. If there has been delay in bringing the suit, the cminrms revertendi must be shown and the delay satisfactorily accounted for, or the prior possessor will be deemed to have abandoned his claim to the possession. Thus in Whitney v. Wright, 15 Wendell, 171, it was held that where Hiere ivas a prior possession of eleven years, and then an entry by the defendants claiming under a title adverse to such possessory title, the omission to bring a suit for thirteen years, with knowledge of the adverse entry

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

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

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

Affirmed.