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Thus his lordship has decreed and did sign | and exhibit at auction for the term of nine days, hereto, which I certify.

Assisting, Juan José Dominguez.

José Maria Loma."

Acevedo.

"I, Don Antonio Martinez, Knight of the Royal Order San Hermenegildo, colonel in the royal armies, and Civil and Military Governor for His Majesty of this Province of the Texas, New Philippines, etc., do certify that the foregoing opinion is a literal copy of that appearing in the proceedings referred from the intendancy of San Luis Potosi and existing in the archives of government in my charge; and for due authenticity I bave signed hereunto at Bexar, the 6th of November, 1819.

Antonio Martinez.

To this is attached: "Exhibit of property sequestered from the rebels to be offered at public auction, with statement of the value of the same according to the last appraisement." In this list is contained Miguel Losoya's suerte, and extended in a column of figures at 50. This list is dated Bexar, the 6th of November, 1819, and signed Antonio Martinez.

Then follows a return by the commissioners of the sale, as follows:

"Pursuant to Your Lordship's order to proceed to the sale and adjudication of the property sequestered from the rebels of this Province, the same was placed at auction for the term of nine days, after which it was cried three times, as prescribed by the order of the Intendant of San Luis Potosi, said property and grounds being adjudicated at the last cry, as appears from the documents which we return to Your Lordship, with others referred by you to this board, for your information, with the understanding that the buyers have been notified to keep the amounts in which the adjudication was made subject to your lordship's pleasure. The other property has not been adjudicated, because no bidders presented themselves.

May God preserve Your Lordship many years.

Bexar, November 22, 1819.

Manuel Cedran.
Vicente Gortori.
José Flores."

and caused the same to be cried three times,
according to the order of the Intendant of San
Luis Potosi, they were adjudicated at the last
cry, which took place on the twenty-first
instant."

Then follows a list of the property sold, in-
cluding "that of Miguel Losoya, also in favor
of Captain Don Francisco Garcia, in $55."
The return proceeds:

"To which parties adjudication was made,
being the only ones whose respective bids
reached the limits specified, no other party
having bidden over them, nor did buyers pre-
sent themselves for the other property con-
tained in the Governor's statement; and for due
authenticity, wherever it may be proper, we
give the presents, signed by us on the aforesaid
day, month, and year.
Manuel Cedran,
Vicente Gortori,
José Flores,

Presidial Company of Bexar."

"Received from the board commissioned by
the Governor of the Province, Colonel Don
Antonio Martinez, the sum of three thousand
one hundred and fifty-five dollars, proceeds of
the sale of rebel property in favor of the royal
treasury, which shall be charged to this com-
pany, of which I am the fiscal agent, and used
for the support of the troops in said Province.
Bexar, November 27th, 1819.
$3,155.00.

Alexandro Travino.

Examined: Martinez."

"The property sequestered from the rebels in this capital having been offered for sale by virtue of Your Lordship's order to me on the subject, I inclose to you the proceedings formed concerning said sale, together with the receipt of the sum of three thousand one hundred and fifty-five dollars, proceeds of the sale of said property, which amount was received by the financial agent of this presidial company for the support of the troops of this Province, which had no means whatever. Therefore I hope that, should Your Lordship deem it proper, the royal treasury department at Saltillo will be instructed to charge the same against the said Bexar Company.

As to the property still remaining unsold, no bidder having presented himself, owing both to the depreciated condition of the same, and to the poverty of the population, which does not permit them to buy it; soine purchasers might present themselves if it were sold on credit, which point I did not wish to determine, because, although some honorable persons may be found able to assume that indebtedness, the uncertainty of the crops and their reduced proportion might prevent them from meeting it. However, Your Lordship will determine as you deem advisable.

"To Governor Don Antonio Martinez.
In the City of San Fernando de Bexar, on the
twenty-second day of the month of November,
in the year eighteen hundred and nineteen, we,
the board of commissioners organized for the
sale of the property sequestered from the rebels
of this Province by the order of the Governor
of the same, Colonel Don Antonio Martinez,
viz., Captain Don Manuel Cedran, Don Vi-
cente Gortori, first regidor of the ayuntamiente |
of this capital, and the inhabitant Don Josef
Flores de Abrego, by virtue of the order of the
said Governor heading these proceedings, in
eonsequence of the order received by that chief
from the Intendancy of San Luis Potosi, also Respecting the house sequestered from the
herein inserted, to proceed to the sale of said rebel, Vicente Travieso (which has been pro-
property sequestered, as appears in the exhibit visionally transferred to the ayuntamiento of
accompanying the order of said Governor, the this city by Your Lordship's order), no bidder
whole for the benefit of the royal treasury, do will ever appear, because it has been materially
certify and, so far as we are able, do pledge our injured by the overflow; and it would be im-
faith that, after having placed said sequestered possible for the whole population to raise the
property mentioned in the above recited order | four thousand five hundred dollars, amount of

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its reduced appraisement. May God preserve | City of Bexar on the day, month, and year
Your Lordship many years.

Bexar, December 10th, 1819.

Antonio Martinez.

To the Intendant, Don Manuel de Acevedo.
Potosi, January 20, 1820."

To the 'promotor fiscal,' in whose office the former proceedings exist, Licenciado Ruiz de Aguerro: I return these proceedings, after having taken proper action thereon and on the former proceedings, without the respective requests, in order that the 'juez de letros' of the respective district may act as he deems just. Potosi, April 16, 1821.

Licenciado Marquez." The next document is the deed of the commissioners, as follows:

"Translation of Deed. Nov. 23, 1819. Valid during the reign of our Lord Ferdinand 7th.

above stated.

Manuel Cedron (Paraph).
Vicente Gortori (Paraph).
José Flores (Paraph).

I approve this sale.
Martinez (Paraph.)"

Among the depositions offered in evidenco
on the part of the plaintiffs were those of Juan
N. Seguin and José Flores. The former of
these, Juan N. Seguin, testified that he had re-
sided in San Antonio from the year of his birth,
1807, until the year 1842; that in 1833 he was
Mayor of the City of San Antonio and political
chief pro tempore of the department of Texas;
that in 1835 he was captain of a company of
Mexican volunteers, and took part in the battle
of San Jacinto, in defense of the independence
of Texas, April 21, 1836; that in 1838 he was
elected Senator in the Congress of Texas, and
in May, 1840, Mayor of the City Council of the
City of San Antonio; and that in 1869 he was
appointed County Judge of Wilson County,
Texas, but subsequently removed to Mexico.
He also testified that he was personally acquaint-
ed with the lands in controversy, known as the
Miguel Losoya suerte, and had been since the
year 1818, when Francisco Garcia consulted his
father as to its purchase, and was acquainted
with it as the property of Garcia, who went into
and maintained peaceable possession of it until
the year 1834, when he died of cholera in the
Bahia del Esperita Santo, near Goliad. He says
the possession of the land by Garcia was public
and notorious, and that from 1824 to 1835 it was
cultivated by Felipe Musquize, whose brother,
Don Raymond Musquize, was the attorney in
fact of Don Francisco Garcia. This testimony
as to possession is corroborated by the witness
Flores, who says he leased it himself in 1835
from Raymond Musquizes, which fact is also
testified to by another witness, Louis Gomez.

It further appears from the record that the plaintiffs' demurrer to the answers of the defendants, pleading the alienage of the plaintiffs and the statutes of limitation as defenses, being overruled, the plaintiffs took issue by a general denial of the allegations by a supplemental petition, which also alleged "That in the year 1833, and from said year and up to the institution of this suit by the plaintiffs, Pilar Garcia de Sabariego had been a feme covert and married woman, and during the whole of said period labored, and still labors, under the disability of being a feme covert and married woman; that her father, Francisco Garcia, died intestate at Goliad, Texas, in the year 1834, and her mother, Gertrudes Barrerra de Garcia, died

"In the city of San Fernando de Bexar, on the twenty-third day of the month of November in the year eighteen hundred and nineteen, we, the commissioners of the board organized for the sale of property confiscated from the rebels of this Province, by the order of the Governor of the same, Colonel Don Antonio Martinez, viz., Captain Don Manuel Cedron, Don Vicente Gortori, first regidor of the ayuntamiento of this capital, and the resident José [276] Flores de Abrego, by virtue of the order of the said Governor, in consequence of the order received by said chief from the Intendancy of San Luis Potosi, to proceed to the sale and adjudication of said confiscated property for the benefit of the royal treasury, do certify and do, so far as we can, bear evidence that after said property was offered in public auction, according to accustomed processes, the 'suerte' of Miguel Losoya was adjudicated in favor of Don Francisco Garcia in the sum of fifty-five dollars, being bounded on the north by the land of the widow of Vicente Amador, on the south by that of Cipriano Losoya, on the east by the wall of the mission of Balero, and on the west by the land of Don Francisco Collantes and Manuel Hirnines, which tract of land was delivered by said board to Captain Don Franciso Garcia in the specified sum of fifty-five dollars, which he paid in current money for the benefit of the royal treasury, in considera-intestate at Matamoras, in Mexico, in the year tion whereof he shall possess it now and hereafter as its lawful lord and owner, remaining at liberty to sell it again, to donate or transfer it by inheritance to whomsoever it may be his will, so that no contradiction may be opposed as to the freedom in which he remains to make use of it; and for due authenticity, and in order that this evidence of sale may avail him as a title and muniment in the archives of the government, and that as many copies of the same may be delivered to the party interested as he may desire, we sign these presents in the

1843; that at the times of the death of her said
father and mother, and from said times until
the bringing of this suit, she labored, and still
labors, under the disability of being a feme
cocert and married woman; and plaintiffs plead
the said disability as excepting and saving the
said Pilar from the operation of all limitation
laws and from all presumptions of grant, and
any and all other presumptions and pleas in de-
fendants' answers contained, which are not
good as against a jeme cocert and married
woman."

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Messrs. W. Hallett Phillips, John Han- | inheritance to maintain an action for the recov cock and S. R. Fisher, for plaintiffs in error: ery of lands in Texas. The determination of the question whether the deed to Garcia and the other confiscation proceedings constituted valid evidences of title depends upon the force and effect of the documents, tested by the law of Spain, from which Sovereignty the title emanated.

If valid under that law, it remained valid through the successive changes of the government of the country in which the property is situated.

U. S. v. Percheman, 32 U. S. 7 Pet. 87 (8: 617). As regards titles made in the name and assumed authority of the sovereign power of the country, the public acts of public officers, purporting to be exercised in an official capacity and by public authority, are not presumed to be usurped, but a legitimate authority previously given or subsequently ratified.

An official title is evidence both of the facts it recites and declares, leading to and the foundation of the grant, and all other facts legally inferable from what is apparent on its face.

Wiederanders v. State, 64 Tex. 133; Hanrick v. Patrick, 119 U. S. 156 (30: 396); State v. Sais, 47 Tex. 307; State v. Cuellar, 47 Tex. 304; U. S. v. Moreno, 68 U. S. 1 Wall. 404 (17: 635); Brownsville v. Cavazos, 100 U. S. 138 (25: 574).

The Treaty of Gaudalupe Hidalgo must be construed to protect a title which accrued before the independence of Texas; Sup. Protocol to the Treaty of May 26, 1848.

But, whether covered by treaty or not, such a title, when valid, has always been respected and sustained in Texas.

Jones v. McMasters, 61 U. S. 20 How. 8 (15: 805); Sabariego v. White, 30 Tex. 576; Airhart v. Massicu, 98 U. S. 491 (25: 213); Hanrick v. Hanrick, 54 Tex. 101; Hanrick v. Patrick, 119 U.S. 156(30: 396); Kilpatrick v. Sisneros, 23 Tex. 125; Barrett v. Kelly, 31 Tex. 483; Osterman v. Baldwin, 73 U. S. 6 Wall. 116 (18: 730); Phillips v. Moore, 100 U. S. 208 (25: 603); Solomon v. Menard, Dallam, 548.

The title to the half derived in 1834 having arisen before the independence of Texas, declaration whereof was made March 2, 1836, its validity is to be determined by the laws of Mex

U. S. v. Arredondo, 31 U. S. 6 Pet. 724-728 (8: 559-561); Delassus v. U. S. 34 U. S. 9 Pet. 134 (9:78); Strother v. Lucas, 37 U. S. 12 Pet. 437 (9: 1147); U. S. v. Peralta, 60 U. S. 19 How.ico then in force. 847 (15: 680); Jenkins v. Chambers, 9 Tex. 235; Johns v. Schutz, 47 Tex. 578; Hanrick v. Jack son, 55 Tex. 17; State v. De Leon, 64 Tex. 553.

Even in Texas, under the very liberal system of practice there prevailing, the defense of stale demand is not available as against a strictly legal title.

Satterwhite v. Rosser, 61 Tex. 172; Williams v. Conger, 49 Tex. 602; Murphy v. Welder, 58 Tex. 235; Carlisle v. Hart, 27 Tex. 350.

The presumption of the regularity and validity of a grant, indulged in favor of innocent purchasers, is a very different thing from presuming the existence of a grant.

Sulphen v. Norris, 44 Tex. 204; Sheppard v. Harrison, 54 Tex. 91-96; Enders v. Sternbergh, 2 Abb. App. Dec. 31.

The presumption of a grant cannot be indulged as against a feme covert.

Gilman v. Tilton, 5 N. H. 233-4; Washburn, Easements, 2d ed. 156; Watkins v. Peck, 13 N. H. 360; Melvin v. Whiting, 13 Pick. 184; Reimer v. Stuber, 20 Pa. 458-463; Edson v. Munsell, 10 Allen, 557; McGregor v. Wait, 10 Gray, 74; Biencourt v. Parker, 27 Tex. 558.

To sustain the presumption of grant it must be by definite boundaries, and coextensive with them.

Sulphen v. Norris, 44 Tcx. 204; Dangerfield v. Paschal, 11 Tex. 579.

No facts amounting to an estoppel were alleged against plaintiffs. That they, for a long period, have failed to assert title to, or exercise dominion over, or pay taxes or other charges against, the land is not sufficient to defeat their action.

Moss v. Berry, 53 Tex. 633; Williams v. Conger, 49 Tex. 602; Murphy v. Welder, 58 Tex. 241. In Ortiz v. De Benavaides, 61 Tex. 62, the Supreme Court of Texas expressly recognize upon the authority of Jones v. McMasters, 61 U. S. 20 How. 8 (15: 805); Sabariego v. White, 30 Tex. 576, and Andrews v. Spear, 48 Tex. 567, the right of an alien plaintiff claiming title by

Brownsville v. Cavazos, 100 U. S. 138 (25: 574); State v. Sais, 47 Tex. 307; Sabariego v. White, 30 Tex. 576; Peeler, Law & Eq. § 55, p. 195.

Of these laws the courts take judicial notice, and no proof thereof is necessary.

U. S. v. Perot, 98 U. S. 428 (25: 251); State v. Cuellar, 47 Tex. 304.

The interpretation thereof by the state courts will be followed by the federal courts.

Christy v. Pridgeon, 71 U. S. 4 Wall. 196 (18: 322).

Mr. John Ireland, for defendants in error: At common law a married woman could not sue or hold property in her own right.

In Texas she can do both; and there is nothing in our situation to induce or call on the courts to extend this exemption in her favor.

O'Brien v. Hilburn, 9 Tex. 297; Cannon v. Hemphill, 7 Tex. 184; Wright v. Wright, 3 Tex. 168: Mitchell v. Wright, 4 Tex. 283; Chapman v. Allen, 15 Tex. 278.

At the expiration of twenty years, an absolute deed will be presumed.

Barclay v. Howell, 31 U. S. 6 Pet. 498 (8: 477); Elmendorf v. Taylor, 22 U. S. 10 Wheat. 153 (6: 289); Jackson v. Huntington, 30 U. S. 5 Pet. 402 (8: 170); Lewis v. Marshall, 30 U. S. 5 Pet. 470 (8: 195); Hawkins v. Barney, 30 U. S. 5 Pet. 457 (8:190); Airhart v. Massieu, 98 U. S. 491 (25: 213).

No presumption can or will be indulged in, by court or jury; because the confiscation, if it ever took place, was an extraordinary proceeding and not in the regular or ordinary course of justice.

Whart. Evidence, § 1308; State v. Sullivan, 9 Tex. 156; Gaines v. Hennen, 65 U. S. 21 How. 553 (16: 770); Jones v. Muisbach, 26 Tex. 235; 2 Domat, Civil Law, 2457, 2669; 1 White, Recopilacione, 255, 238, 289, 230.

This routed and defeated dynasty could not confiscate the real property of the victorious and successful Mexican people.

"The documents upon the confiscation and Prescription is founded on the highest con- sale are, therefore, authentic documents, and siderations of public policy.

Public policy demands that the law of estop Texas affirms in them that, by order of the pel shall have full force.

At the time the transactions took place in Texas, 1810-1822, the Spanish Constitution | and laws and decrees of the Emperor and Congress of Mexico, being then the supreme law in Mexico and Texas, are now the laws of the case at bar, and this court will take judicial know-it did in fact exist: ledge of them.

Whart. Ev. S 283, 285, 291; Romero v. U. S. 68 U. S. 1 Wall. 721 (17: 627); Chandler v. Von Roeder, 65 U. S. 24 How. 227 (16: 634). An alien cannot sue to recover lands, either at common law or under the laws of Texas. White v. Sabariego, 23 Tex. 243; Barrett v. Kelly, 31 Tex. 476; McKinney v. Saviego, 59 U. S. 18 How. 235 (15: 365).

Plaintiffs allege that they are citizens and residents of Mexico, and the presumption of law is that they have always been citizens of Mexico, and aliens.

Whart. Ev. & 1284; Walrod v. Ball, 9 Barb. 271; Cooper v. Dedrick, 22 Barb. 516; Smith v. Smith, 4 Paige, 432; Wilkins v. Earle, 44 N. Y. 172; Morse, Citizenship, pp. 13, 87; 1 Greenl. Ev. § 41.

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