Opinion of the Court. decrees of May 4, 1871, and May 4, 1872, and the deeds which had been made to purchasers of lands thereunder; insisting that West's title had been divested by the confiscation proceedings, and alleging that they never appeared in said consolidated causes in person, or employed any attorney at law to represent them, and that no process was ever served upon them, and charging fraud in the entry of their appearance. Upon the final hearing their bill was dismissed, and they prosecuted an appeal to the Supreme Court of Appeals of Virginia, which court affirmed the decree of the court below, holding that, as between the heirs and the purchasers, the former were bound by the recitals of the decree of May 4, 1872; and that upon the evidence aliunde the record, the heirs were estopped by laches and by conduct, to claim title as against the purchasers who were such in good faith for value and without notice. The complainants filed a petition for rehearing in the Court of Appeals, in which they stated "that on the 17th day of May, 1888, in the above-entitled cause a decree was entered simply affirming the decree of the lower court entered on the 26th day of October, 1886, dismissing the bill of the plaintiffs below for reasons stated in the opinion of the court. The reasons stated are based upon the equitable doctrine of estoppel in pais and innocent purchaser for value, without notice, the language of the opinion upon these points being as follows: (a) Having kept a sinister silence when they should have spoken with candor and courage, equity now closes her door and leaves them to obtain from a court of law what they can.' (b) 'That as against an innocent purchaser for value, without notice, a court of equity is without jurisdiction, and will refuse to give any assistance whatever, leaving the party to enforce his technical rights at law." The rehearing was denied, and the writ of error sued out of this court, a motion to dismiss which is now before us. In the petition for the allowance of this writ it is said that the final judgment of the Court of Appeals against plaintiffs in error was rendered in a suit "wherein was drawn in question a right, title, privilege and immunity to real estate arising upon the construction of the act of Congress of the United States approved July 17, Opinion of the Court. 1862, entitled 'An act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes,' and the joint resolution passed concurrently therewith, and the decision is against the right, title, privilege and immunity claimed under the said statute.” We do not so understand this record. Conceding that West's title to the particular lands had been divested by the sale under the confiscation proceedings, and that the interest of the heirs remained unaffected thereby, yet, if they were concluded under the circumstances by the decree of May, 1872, or upon the principles of estoppel and laches, that disposed of their case adversely to them; and it was upon these grounds that the Virginia courts proceeded, and not upon any decision. against a right, title, privilege and immunity claimed under the Constitution or any statute of, or authority exercised. under, the United States. It was only if the decision had been otherwise upon these points that any question could have arisen as to the validity of the confiscation act and resolution and the proceedings thereunder. Unless it appears affirmatively that the decision of a Federal question was necessary to the determination of the cause, and that it was actually decided, or that the judgment as rendered could not have been given without deciding it, this court has no jurisdiction of a writ of error to a state court. In this case the judgment as rendered involved the decision of no such question, and none such was actually decided. Nor can jurisdiction be retained upon the suggestion, made for the first time in this court, that if the Court of Appeals, proceeding upon the principles of general law only, were found to have erred in the rendition of its decree, the State of Virginia had thereby deprived the plaintiffs in error of their property without due process. The writ of error is dismissed. Argument for Defendant in Error. PROBST v. TRUSTEES OF THE BOARD OF DOMESTIC MISSIONS OF THE GENERAL ASSEMBLY OF THE PRESBYTERIAN CHURCH. ERROR ΤΟ THE SUPREME COURT OF THE TERRITORY OF NEW MEXICO. No. 113. Argued and submitted December 7, 1888. Decided January 21, 1889. A ruling, in the trial court, that the showing that an original deed of a tract of land to a party in a suit pending in New Mexico is in the office of that party in New York lays a foundation for the admission of a copy, by that party, under § 2768 of the Compiled Laws of that Territory, is not good practice, nor an exercise of the discretion of the court to be commended; though it is possible that if there were no other objection to the proceedings at the trial, the judgment would not be reversed on that account. An entry into land without right or title, followed by continuous uninterrupted possession under claim of right for the period of time named in a statute of limitations, constitutes a statutory bar, in an action of ejectment, against one who otherwise has the better right of possession. EJECTMENT. Plea, the general issue and the statute of limitations. Verdict for plaintiff and judgment on the verdict. Defendant sued out this writ of error. The case is stated in the opinion. Mr. F. W. Clancy and Mr. O. D. Barrett for plaintiff in error. Mr. John E. Parsons, for defendant in error, submitted on his brief. Mr. Parsons' brief on the points considered in the opinion of the court, to which reference has been made for a statement of the case, was as follows: I. It was not error for the court to permit the Board to prove that deeds purporting to convey the locus in quo to its predecessors in title appeared on record in the Recorder's Office of Santa Fé County. (1) It having been proved that the Board was in possession that entitled it to judgment, un Argument for Defendant in Error. less Probst showed either earlier possession or title. Ejectment is a possessory action. All that is required of the plaintiff to enable him to recover is, that he shall show possession and a subsequent entry by the defendant. Smith v. Lorillard, 10 Johns. 338, 356; Burt v. Panjaud, 99 U. S. 180; Christy v. Scott, 14 How. 282, 292. The evidence of record title in the Board was unnecessary therefore to enable it to recover. Jackson v. Wheat, 18 Johns. 40; Jackson v. Newton, 18 Johns. 355. It was entitled to recover unless Probst made good his plea of ten years' adverse possession. If, therefore, there had been error in receiving this evidence, it was immaterial. Greenleaf v. Birth, 5 Pet. 132; First Unitarian Society v. Faulkner, 91 U. S. 415; Decatur Bank v. St. Louis Bank, 21 Wall. 294. (2) The evidence was, however, competent as showing acts by the parties from time to time proved to be in possession, characterizing their possession. Verbal declarations are competent for this purpose - a fortiori acts of the parties. Pillow v. Roberts, 13 How. 472, 477; Jackson v. Van Dusen, 5 Johns. 144; S. C. 4 Am. Dec. 330: Dodge v. Freedman's Bank, 93 U. S. 379. (3) The New Mexico statute is as follows (act of January 12, 1852, § 21): "When said writing is certified and registered in the manner herein before prescribed, and it be proven to the court that said writing is lost; or that it is not in the hands of the party wishing to use it, then the record, etc." (a) It was proven that the deeds were not "in the hands of the party wishing to use" them, viz.: Dr. Eastman, the agent of the Board in New Mexico. (b) It was also shown that, if in existence, they were within the State, but in New York city. This justified any secondary evidence of their contents. Burton v. Driggs, 20 Wall. 125, 134; Bronson v Tuthill, 1 Abb. Ct. App. Dec. (N. Y.) 206. And the general rule is, that the sufficiency of preliminary proof "to authorize the admission of parol evidence of the contents of arwritten instrument, is very much in the discretion of the trial court, and the case must be quite without proof to authorize an appellate court to find error." McCulloch v. Hoffman, 73 N. Y. 615. Argument for Defendant in Error. (4) So far as concerns all the deeds except that from McFarland to the Board, a sufficient foundation was laid for the introduction of record (secondary) evidence. There is no presumption that these deeds were in the possession of the Board. Eaton v. Campbell, 7 Pick. 10. Very slight foundation is sufficient to justify a trial court, in the exercise of a sound discretion, in receiving records as primary evidence. McCulloch v. Hoffman, 73 N. Y. 615. (5) The old deeds offered to fix the locus in quo and characterize possession were made prior to the statute respecting conveyances, Prince's General Laws of New Mexico, 234; contained in effect a proper acknowledgment; were recorded under the act of 1859, Id. 426; and were upwards of thirty years old. II. As to the errors alleged to have been made by the trial judge in his instructions to the jury, there was only a general exception. Such an exception will not be entertained by appellate tribunals. This especially ought to be so where, as here, the case for the plaintiff in error is without any show of merit. The New Mexico statute, act of 1880, c. 6, § 28, Gen. Laws, 127, itself provides: "Either party may take and file exceptions to the charge or instructions given; or to the refusal to give any instructions offered, etc.; but in either case the exceptions shall specify the part of the charge or instruction objected to, and the ground of the objection. And the general rule requires almost as much precision." Cooper v. Schlesinger, 111 U. S. 148; Hoyt v. Long Island R. R. Co., 57 N. Y. 678; Ayrault v. Pacific Bank, 47 N. Y. 570. But whether the plaintiff in error can or cannot argue these exceptions, there is nothing in them. They all relate to Probst's plea that for more than ten years before suit brought he had been in adverse possession of the locus in quo. He did not pretend to have title. His defence limited itself to the assertion that he had had ten years' adverse possession; or, what comes to the same thing, that by ten years' adverse possession the Board had become barred by the statute of limitations. The testimony of Probst himself showed that |