
    Herndon v. Casiano.
    Testimonios of public acts done under the former Governments, are receivable in evidence in all respects as originals. (Note 60.)
    Proofs are made in our courts conformably to the common-law rules of evidence. These, being tho law of tho forum, must, in general, govern. And these rules are sufficiently expansive to afford some mode of proof of every existing fact on which the rights of parties depend. By tho common law, originals duly proved are always admissible.
    Where the bill of exceptions to the admission of documentary evidence does not state the objections. the only question which can be considered as presented is, whether a document of the character and im port of the one objected to is admissibleatall,however proved. And ^ where the bill of exceptions states the objections, the appellant will be confined to the same objections in the appellato court.
    Archives of the offices of the former Government are admissible in evidence in cases where they aro not irrelevant; and where an archive which concerned the title to land was produced from tho possession of the person who possessed and claimed the land, and it was identified by a witness who testified that he had seen it on record among the archives of the department at Ban Antonio, in 1834 and 1835, the same witness testifying that during the Revolution of 1830 the public records wore scattered about the rooms in which they wore kept, that persons took possession of those in which they were interested, and that this archive was taken possession of by some one, ho did not know by whom: Held, That, under tho circumstances, (lie fact that it did not come directly from the proper custody was no objection to its admissibility.
    The Commissioner of tho General Land Otlieo is authorized to give certified copies, to be read in evidence, of all records, books, and papers, the legal custody of which belongs to his office. But his certificate will not give legal authenticity to papers which are mere private property, and which do not belong to or constitute archives of his olfioe. (Note 51.)
    
      Quero whether a certified copy, from tho General Land Offico, of a testimonio of a public net is admissible. It seems that where the testimonio had been recorded m the ofiieo of the county clerk, a certified copy from tho record is admissible, as in other c-a^es.
    The cases of Houston v. Perry and Williams <5 Tex. R.) and Bmitli v. Townsend (Dallam 572) referred to for some general principles applicable to tho proof of testimonios of public acts.
    Although certain rules upon the subject of the presumption of a grant, from possession and lapse of time, have been established, yet the question will still depend, in some degree, on the particular circumstances of the case.
    
      It seems that the Spanish Government recognized verbal as well as written grants to land.
    Long continued possession, tending to create the presumption of a grant, will bo aided by the admission, without objection, of verbal testimony that a graut did once exist. (Note 52.)
    Where it was proved that the family of Hernandez, under whom tho defendant claimed, had been in the continued possession of tho land iu controversy, claiming title for move than haW a century previous to J.S13, when they were driven away by the incursions of hostile Indians; and it was further proved that the defendant had been in possession of tho land, with Ins deed recorded, for the last ten years; and the claim, was plotted on the county map as early as 1838 or 1839, and was respected by the authorities and surveyors until the plaintiff made his location in 1847: Held, That a grant to the Hernandez would bo presumed, and that there was nothing in the interruption of the possession in 1813 to repel the presumption: Held, also, That the presumption was corroborated by the fact that nearly a century ago the land was the subject of litigation between the Hernandez and other individuals.
    It seems that tho common-law rule, that the presumption derived from possession is, that the possessor owns absolutely, is applicable to possession beforo the introduction of the common Jaw.
    Tho improper admission of testimony will not cause a reversal of tho judgment whoro (lie evidence is ample without it. (But in this instance the case was submitted to tho court.)
    It is legitimate for tho defendant in a controversy respecting lands, to pray that the locations, &c., of (he plaiutitf, being u cloud upon liis title, be removed, &e.
    Appeal from Bexar. The appellant brought suit to recover from the appellee a league of land, claimed by the former, by virtue of a headlight certilicate, located in October, 1847.
    The defendant claimed the land under an ancient Spanish grant to one Louis Mencliaca, and by legal mesne conveyances. In his answer, he averred that Mencliaca and those claiming under him were in possession of the land for about ninety years, using and enjoying it for the purposes of agriculture and grazing; that the title was iu the defendant; and that the locations of the plaintiff upon it constituted a cloud over his title, &c. Wherefore he prayed that the locations of the plaintiff might he canceled, &c. The plaintiff gave in evidence his certificate and location. The defendant introduced a document, marked B, to the admission of which the plaintiff objected, hut on what ground did not appear. Tho court overruled the objection, and the document was' read in evidence. The defendant also offered in evidence a certified copy, from the General Land Office, of a document, which copy was marked A; to the introduction of which the plaintiff objected, on the ground that it was a copy of a copy; which objection the court overruled, and admitted the copy iu evidence.
    Document B purported to he the original testimonio and dispatch from the superior tribunal of the judicature at the city of Mexico, to tiie local authorities at San Antonio, iu 1757, of proceedings in a suit between Jose Antonio Mcn-chaea and the heirs of Francisco Hernandez, respecting the right to tlio lands of which til at iu controversy ’was a part. From this document it appeared that a controversy had arisen between the parties, respecting the ownership of tiie land, before the authorities at Sail Antonio; the former claiming by virtue of grant of fifteen leagues between the Cíbolo and the San Autouio rivers, at their junction, and the latter claiming four leagues included within the boundaries oí the grant to the former under a grant to their father, and possession taken under it iu 1737. The decision oi the local authorities appears to hayo been favorable to the title asserted by Menehaca; and the heirs oí Hernandez appealed to the superior tribunal at the city of Mexico. The document contained a history of the proceedings before the tribunal; it recited the claims and pretensions of the contending parties at great length ; aud concluded with the decree and mandate to the local authorities, settling the principles upon which they should proceed to determine the controversy, recognizing the validity of the grant to Menehaca, declaring that to Hernandez invalid, by reason of having been issued by a governor ad interim, who had not authority to make it; hut at the same time declaring that the Hernandez, by reason of their possession in good faith, were entitled" to the preference; and commanding the local authorities to restore to them the four leagues claimed, upon certain prescribed terms aud conditions.
    Document A was a certified copy from the General Land Office of what purported to he the original testimonio of proceedings iu a compromise and adjustment of the litigation theretofore existing between Menehaca and the heirs of Hernandez respecting the four leagues of land claimed by the latter, made and passed before the’alcalde, in the absence of a notary,'at San Antonio, in the year 1758, by which it appeared that, for various causes set forth, they agreed to compromise the litigation respecting the laud, passing mutual releases, and Menehaca released and conveyed to the Hernandez'the four leagues claimed by them.
    It was admitted that the plaintiff was owner of the certificate under which he claimed, and that all the title ever in the Hernandez was vested in the defendant before the plaintiff’s location by valid mesne conveyances, of record in the county since September, 1837. It was further admitted that, the land claimed by the plaintiff under bis location was in the possession of the defendant, ’and claimed by him under the Menehaca and Hernandez title. The plaintiff gave iu evidence the map of the district surveyor, to prove the situation of the land, and so much of the map as showed the locality of the Menehaca and Hernandez tract, which was read iu evidence, was made a part of the statement of facts.
    Domingo Bustillo, a witness for the defendant, testified that Menehaca and liis heirs and Hernandez and his heirs had been in the actual possession and occupancy of the land for a great many years previous to 1813 and 1814, when the ranches of Hernandez were broken up by the Devolution and the hostilities of the Indians. The Hernandez had a ranch on the Cíbolo, and Menehaca two ranclies on the San Antonio, on tiie same tract of land before described. The witness saw these ranclies when ho was eighteen or twenty years of age, and bis age is now (1848) sixty-nine years; these possessions were very ancient, as the witness learned from old persons when he was a boy. Tiie defendant having previously filed an affidavit of the former existence and loss of the original grant from the Government of Spain to Menehaca, the witness testified that he liad seen iu the archives at San Antonio a grant to Men-chaea for this tract of land from the Government of Spain. He had also seen the papers iu the suit between Mencliaca and the Hernandez for four leagues of the grant, and also the papers in the subsequent compromise which took place between them, by which the right of the Hernandez was admitted. It was admitted that the grant was not to lie found in the General Land Office nor in the county records. The witness being shown the document B, said it was the same lie had seen in 1834 and 1835, and that it was then a record among the. archives of this department at San Antonio. On being asked liow it came out of the archives, he said that during- the Devolution of J83G the public records were scattered about the rooms in which they were kept, and that persons took possession of those iu which they were interested; that these papers were taken possession of at that time by some one, but the witness did not know by whom. He knew they were the same he had formerly seen among tiie archives. The papers were then admitted in evidence.
    
      Another witness (Rodregnes) testified that the land in question had always been claimed by the heirs of Menehaca and Hernandez; the witness was seventy years old, and he knew the land to have been occupied and possessed by them from the time he was eight years of age until in 1813, when they were driven off by the incursions of the hostile Indians. He stated that, these possessions wore very ancient; that lie had heard when a boy, from the old inhabitants, that they had been occupied by the owners as ranches many years before lie was born. Hernandez owned the four leagues on the Cibolo, one league in depth, and four leagues along the margin of the stream, and Men-ehaca owned the remaining eleven leagues of the tract. Both this witness and the witness Bastillo testified that these lands had always been respected by the Governments of Spain and Mexico as the property of the Menehaca and the Hernandez; and that they had always been claimed by them.
    
    It was further in proof that the defendant, Casiano, had been in possession for the last ten years, claiming under the Menehaca and Hernandez title.
    S. A. Maverick, a witness for the defendant, testified that he was well acquainted with the Menehaca and Hernandez tract in question, of fifteen leagues. He described its locality and boundaries as defined on the county map. lie saw the county surveyor, Hays, survey the four leagues of the tract for the heirs of Hernandez, and the remaining eleven leagues for the heirs of Menehaca, in the winter of 1840-41. lie saw the ruins of the old ranches, houses, cattle pens, <ifcc. lie saw these lands described on the county map in 1838 or 1830. lie further testified that these tracts of land have always been respected by the surveyors, and that no locations were made upon them until by the plaintiff and one Pearly in 1S47.
    A jury was impaneled, who, being unable to agree, were discharged, and tbe case, by consent, was submitted to the court. There was judgment fertile defendant according to the prayer of his answer, and the plaintiff appealed.
    
      I.A. fy G. W. Paschal, for appellant.
    I. The merits of the case are involved in three questions: .
    1st. Did the court err in receiving the documents marked A and B, as evidence ?
    2d. If not, did the testimony show a grant of land from the Spanish Government to Menehaca?
    Lastly. Is such a grant cognizable by the courts of justice?
    II. Can the copy of a copy, certified by the Commissioner of the General Land Office, be received in evidence? The cop}1' on file in the land office purports to have issued from Mexico ninety years ago; can a certified copy of this be received in evidence? The document was admitted to record in Bexar county upon the statement of Francisco Bastillo, who swore to the signature of Louis Menehaca — Bastillo was not born when Menehaca died. Bustillo, by his own statement, is only sixty-nine years of age. The signature and rubric were made near ninety years ago.
    III. The documents do not show a grant. Possession cannot make a grant. The proof shows there was no possession from 1S13 to 1839.
    IY. If the documents showed a grant, the courts of this State cannot take cognizance of it.
    The questions have been fully argued at the present term of the court in the printed brief of Wilcox v. Chambers, and also in the argument of Paul v. Perez. It is now useless to argue thorn over again.
    
    
      V. E. Howard, for appellee.
    I. None hut vacant land is open to location. The county map of the surveyor since 1838 shows that this land lias been spread upon the surveys of the county as appropriated under the Menehaca and Hernandez grant. (Land Law, sec. 40; Smith u. The Commissioner of the General Laud Office, 5 Tex. R.)
    II. Possession is prima fade evidence of title, (9 Wend. R., 223,) and notice to all subsequent purchasers. (2 vol. Am. Ch. Dig., G32; Ereeni. Ch. R., (Hiss..) 95.) In this case the defendant was in actual possession when the location was made.
    Subsequent locators are entitled to notice, as they are bound to find vacant land. (Taylor v. Brown, 2 Pet. Cond. It., 235.)
    In this case the grantee and his heirs had been in possession seventy-five years up to 1813, when the possession was forcibly interrupted but. was resumed again as soon as possible, and Casiano has been in possession ten years. It, is apparent from all the authorities that twenty years’ possession under tiie Spauish law gave title by prescription against the Government. The title itself is an adjudication of that, in favor of Hernandez, by tiie attorney general and the president of the royal audience, the supremo tribunal in adjudications of lands. Even ten years gave a right of composition, (2 White, 54.) Prescription, under the Spanish law, was'of higher dignity than a grant. (2 While, p. 82.)
    All real actions for property sold in bad faith were barred in thirty years. (2 White, 86.)
    See the. Spanish law stated by the Supreme Court of the United States, in tiie ease of Mitchell, (9 Pet., 760,) which was a suit against the Government; and the rule was applied against the Government as the successor of the crown of Spain.
    III. Where tiie statute can run, the rule is imperative as a law of prescription, and vests an absolute title; but where it does not run, as against the crown and the State under the common law, those courts act by analogy, and presume a grant from long possession. This has been done on possessions of various lengths, from twenty to sixty years; the latter decisions incline to twenty years. (9 Pet. R., 760; 1 Greenl. Ev., sees. 17, 45; Jackson v. McCall, 10 Johns. R., 377; see the authorities very fully collected in vol. 2, C. & H.’s Notes to Pliill. Ev., p. 354; Gilchrist v. McGee, 9 Yerg. It., 455.)
    As to the application of this rule undel- the Spanish law, and that, by that law, parol grants of land were recognized as binding on the Government, see Landry v. Martin, 15 La. R., 1; Strother v. Lucas, Í2 Pet. R., 447,- 450.
    That prescription was a good title against the crown of Spain, does not admit of question. But if that position could not be sustained, there is no doubt that the length of possession found in this case called for the presumption of a grant from the crown of Spain; and on either ground the judgment of the court below should be sustained.
    IV. In this case there is ample proof of a grant. It is proved by the record evidence of the supreme granting power, which recites it. It is proved by the record of a judicial proceeding, in which the right was solemnly adjudged in Hernandez. It is proved by the testimony of Bustillo, who swears that he had seen it. It is proved by tiie compromise which took place judicially before the Alcalde, which was made a judgment, and recites the title. Its loss is proved by the affidavit of Casiano, rendered extremely probable by the testimony of Bustillo as to the condition of the public records during the Revolution. It was admitted that it could not be found in the land office at Austin, nor among the archives at San Antonio. The record evidence of the existence of the title to Menehaca is inferior only to the grant itself. If we were compelled to make title under the grant to Menehaca, it is proved. But we contend that we are not compelled to make title through Menehaca. The paper title of the Hernandez is perfect. The judgment of the judge primitive at Mexico, who was the supreme granting power, pronounced the right of Hernandez good, and ordered a title in form to issue to him, unless a compromise took place, by which the purchase-money of the four leagues, paid by Menehaca, which the crown had received, should be refunded to Menehaca by Hernandez. This compromise took place; and of course the decree and compromise stood as a grant from the crown to Hernandez, as well as a judgment that his title was perfect. Although there were mutual releases, the title of Hernandez does not necessarily depend on the grant to Menehaca. A patent to lands ‘does not pass the title, but is only evidence that it lias previously passed by virtue of the acts which the law requires. (Goodletu. Smithers, 5 Port. R., 243 ; MeConnel v. Wilcox, 1 Scamm. It., 1; Ohio Cond. It., 492.)
    V. There can be no doubt of the propriety of admitting in evidence the land-office copy of the judicial compromise between Hernandez and Meu-chaca. It was an “archive ” relating- to land, and as such properly tiled in the laud office. Besides, the commissioner is the officer to determine whether it is a paper properly to be filed. The 14th article of the Constitution is the first act which shows what were the papers which were subsequently ordered to bo tiled in the laud office. The 4th section of the act of 183G, p. '210, authorizes copies of “any books, records, or papers” of the office. The supplemental act, vol. 1, p. 264, sec. G; is still more explicit. The act of 1837, relating to public archives, places in the land office any titles or documents whatever which relate to lands, and which, by the laws now or hereafter existing in Texas, have been or are considered “ archives.” ,
    There can be no doubt this paper was an archive under the laws of Mexico then in force in Texas. (Yol. 2, p. 44.) It is equally clear under the land law of 1837. (vol. 2, p. 03, sec. 5,) which is still in force, by the act regulating proceedings in tiie District Court, section eighty-nine.
    Tiie record of tiie proceedings at the city of Mexico was properly admitted as a record, because it was proved by Bustillo to bo the one formerly on tile in the “Jefatura.” It was property admitted as a deed or grant, because shown by the same witness to have come from the proper custody in 1835, and because it was more than thirty years old, and long possession had been held under it. (1 Greenl. Ev., sec. 570.) Reputation of ownership in the neighborhood is competent evidence. (4 Phil. Ev., 349, C. & II.’s ed.)
   Wheeler, J.

1. We are of opinion that document B was admissible in evidence. It was tiie original testimonio, proved to bo tiie same which had been formerly kept among the public archives: Its removal from the proper custody is satisfactorily accounted for, and its identity proved. No suspicion is cast upon its genuineness; and, under tiie circumstances, the fact that it did not come directly from the proper custody is not regarded as an objection to its admissibility. (1 Greenl. Ev., secs. 142, 570.) It emanated from a now foreign tribunal, where tiie protocol remains, beyond the control of the parties anil authorities of this country. ' Tiie protocol is not and cannot be made an archive of tiie land office. Tiie testimonio, though denominated a second original, is still an original. It. was executed and delivered contemporaneously with the malting of the protocol. It constituted the original evidence of authority in tiie tribunal to which it was directed, and invested them with power to act in the premises. It remains with them as tiie basis of their authority and the foundation of tlicir proceedings. It was an original, as much so as a patent issued under the great seal.

This point was expressly decided by tito Supreme Court of the Republic, in the case of Smith v. Townsend, (Dallam. 569;) and the principles of that case were fully recognized and affirmed by this court, in tiie case of Houston v. Perry and Williams, (5 Tex. R., 462.) In pronouncing the opinion of tiie court in the former case, tiie chief justice, after citing authorities, said: “ From the authorities and laws to which we have referred, as well as from the facts proven in tins case, wo conclude that copies of notarial aet-s were (at the time of the execution of this instrument) regarded, in contemplation of law, as original; that they were the only-evidence of title which the party interested was entitled to retain in his possession, and that they are properly admissible for all the purposes which by the introduction of the originals themselves could bo effected.” (Dallam, 572; and see authorities cited, and 9 La. R., 526; 14 Pet. R., 340, 348.)

Proofs are made in our .courts conformably to the common-law rules of evidence. These, being tiie law of the forum, must, in general, govern. These rules are sufficiently expansive to afford some mode of proof of every existing fact on which the rights of parties depend. By the common law, originals duly proved are always admissible.

There "was no objection made to the manner of proving the instrument; but the objection was general. The only question, therefore, which can be considered as presented by the bill of exceptions is. whether a document of the character and import of the present be admissible at all, however proved..

This point was also decided in the case before cited, of Smith v. Townsend. The court there confined themselves to the objections taken to the instrument at the trial. (Dallam, 572, 573.) And in Houston e. Perry and Williams, this court held that a party in the appellate court will be confined to the specific objections taken to the admissibility of evidence in the court below. This is the rule maintained by the Supreme Court of the United States, (6 Cond. R., 274,) and by the Supreme Court of Louisiana, (2 Mart. R., H. S., 270; 10 Id., 637,) where, since the change of government, tlie courts have observed tlie common-law rules of evidence. (9 La. R., 520.) Indeed, this is tiie prevailing if not the universally-received general rule, and it is the settled law of tills court.

But the document, the admissibility of whieii we are considering, was not only an original, but it was also an archive; and as such, admissible, upon tlie principles and authorities recognized by this court in the case of Lewis et al. v. The City of San Antonio, recently decided.

There may be more reason to question the admissibility of the copy from the land office, described as Document A. '

The Commissioner of the General Land Office is authorized to give certified copies, to he read in evidence, of all records, books, and papers, the legal custody of which belongs to his office. (Hurt. Dig., art. 1841.) But, on general principles, his certificate would not give legal authenticity to papers which are mere private property, and which do not belong to or constitute archives of liis office. The admissibility, therefore, of Document A must depend on tlie inquiry whether the original, of which it is a copy, be a document properly appertaining to that office, or the private property of the interested party, supposed to be in his possession or subject to his control. In the one case, the copy would be admissible; in the other, it would not. It purports to be a copy of the testimonio of a public or authentic act, passed before the al-calde, in the absence of a notary. The protocol remained with the alcalde; was a record of his office; and this, it would seem, was the document which should have been placed in the General Land Office, to become an archive of that office. (Hart. Dig., arts. 1780, 1819, 1835.) The testimonio, as wc have seen, if duly proved, would have been admissible. It appears to have been recorded in the county. Why the original or a copy from tile cornily record was not introduced, instead of a copy from file land office,-is not perceived. But whether the copy offered was rightly admitted or not, is not, as wo shall see, an inquiry on which the decision of tlie ease depends. In tlie case of Houston v. Perry and Williams, tlie subject of tlie mode of proving empresario contracts was passed upon; and in that and the case of Smith v. Townsend some general principles are stated applicable to the proof of this class of instruments, to which, for tlie present, it may suffice to refer.

2. Tlie consideration of the merits of tlie case involves the question of the validity of the defendant’s title. This must depend mainly on the presumptions arising from long-continued possession.

Within what time a grant will be presumed in favor of a continued possession was considered in tlie case of Lewis et al. v. The City of San Antonio. It will not be necessary to repeat here tlie examination of that subject. It will be seen by reference to the opiuion of the court, that, although certain rules on the subject have been established, the question still depends, in some degree, on the particular circumstances of tlie case.

“The length of time” (said the Supremo Court of tlie United States in the case of Mitchell v. The United States, 9 Pet. R., 760) “which brings a given case within the legal presumption of a grant, charter, or license to validate a right long enjoyed, is not delinite, depending on its particular circumstances.”

In Landry a. Martin et al., (15 La. R., 1,) the Supreme Court of Louisiana, after mature consideration, decided that the Spanish Government recognized verbal as well as written grants to land, and that after a long-continued possession for nearly half a century, if a written grant were necessary it would be presumed. (Id., 9, 12.) And in Barclay et al. v. Howell’s Lessee, (6 Pet. R., 498,) the Supreme Court of the United States held that an uninterrupted possession of thirty years would authorize the presumption of a grant. ” Indeed, (the court, said,) under peculiar circumstances, a grant has been presumed from a possession less than the number of years required to bar the action of ejectment by the statute of limitations.” (Id., 513.)

It is in proof, by the testimony of a witness who was permitted to testify to the fact without objection, that there had a grant existed from Che Government of Spain to Menohaca for this ¡and. It was not produced; but that it may have been lost in the condition of the country, distracted by successive revolutions, the incursions of hostile Indian tribes, and the ravages of incessant wars, is not improbable. The same witness testified further, without objection, that lie had seen the papers in the compromise of a suit which toolc place between the Menohaca and the Hernandez respecting the four-league tract claimed by tile defendant, in which the right of the Hernandez was admitted.

But, apart from the positive evidence of the existence of a grant, a sufficiently long-continued possession is shown to authorize the presumption oí a grant. The evidence, we think, fally justifies the conclusion that the Hernandez, under whom the defendant claims, and whose right it is admitted he has, liad been in the continued possession of this land, claiming title, for more than half a century previous to 1S13, when they were driven o'ut from their homes and ancient possessions by the incursions of hostile savages. This possession and claim of title, unsupported by other circumstances, would be sufficient to authorize the presumption that they held by title derived from the Government. It is not reasonable to suppose that they would so long have ret ¡lined and occupied these possessions without a title, especially when we consider with what facility grants to land in the provinces were obtained.

But the presumptions arising from possession are strongly corroborated by other circumstances. The fact that nearly a century ago this land was the subject of litigation between individual claimants is a cogent circumstance in favor of the conclusion that the title had passed out of the Government. It is not probable that individuals would have litigated the title to lauds to which there had been no grant of title. The Hernandez then — in 1757 — claimed the land, by title and ancient possession, against the admitted grant to Menohaca, and it appears that the right was accorded to them by competent authority, upon certain prescribed terms and conditions. They appear to have retained possession ever after until the year 1813. The presumption, therefore, is, that the terms and conditions prescribed were complied wilh by them, and that they thereby acquired the undisputed right.

The evidence, we think, warrants the conclusion that in 1813 the Hernandez possessed the absolute title to the land ; the presumption, derived from possession. being that the possessor owns absolutely. (C. & H's. Motes to Phillips’s Ev., u. 297.) Their possession was then interrupted, but not by the Government, or any individual claiming adversely to their right. M'o adversary claim was asserted. On the contrary, it is in proof that the Spanish Government and the succeeding Governments always respected their right; that it was always respected by the surveyors and by locators, until tlm plaintiff made Ins location in 1847. Though the owners were driven from their possessions, such was the general belief and confidence in their right that no one seems ever before to liave questioned it, or thought of the possibilhy of appropriating to himself, by location, these ancient possessions. That this belief and respect of the right of the Hernandez had its origin and foundation in knowledge, which then existed, of the facts, can scarcely admit of a doubt.

Note 50. — Paschal v. Perez, post, 348.

Note 51. — Pasaba! v. Perez, post, 348.

Note 52. — Lewis v. San Antonio, ante, 288.

In the interruption of the possession of the Hernández in 1813, we see nothing to repel the presumption which certainly then existed, that they were the real owners of the land. • It, at that time, was, as we must suppose, theirs to hold and dispose of; and it cannot he pretended that tho necessity which compelled them to leave it deprived them of that right.

The defendant, claiming under the Hernandez, by regular mesne conveyances of record, had been in possession nearly ten years when the plaintiff made his location. Their presumptive title is thus connected by the evidence with and upholds his paper title derived from them. And we entertain no doubt that in him is the right and title to the land.

In considering the ease on the merits, we have left out of view the certified copy from the land office of the testimonio, the admissibility of which is questionable. Had its contents been considered, there would, perhaps, have been no necessity of resorting to tbe evidence of presumptions, however satisfactory, to establish the fact of title in the defendant. Bat the admission of the copy in question, though erroneous, cannot afford a ground for reversing the judgment where the evidence is ample without it.

The principles on which the decision of this case mainly depends have been so fully considered and settled in the eases to which wc have referred, that their further discussion here is unnecessary.

We are of opinion that there is no error in the judgment, and that it be affirmed.

Judgment affirmed.  