Opinion of the Court. 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 indorsement 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 If genuine, it was revoked by the war of 1835, the revolution between Texas and Mexico, and the constitution of March 17th, 1836.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 of 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 tradition Opinion of the Court. ally 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, 1837. As it was Williams's 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 defendants' 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 VOL. CXXV-27 Opinion of the Court. 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 indorsement and delivery to Samuel M. Williams. This is not so. The indorsement 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. Blancowould 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 properly 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 Opinion of the Court. 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 3d, 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's trunk, in Texas, Blanco's conveyance to Laguerenne would not on that account be without authority if the said paper in Williams's 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 it 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 au Opinion of the Court. thentic 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 |