between all who had interests, and was ex-
pressed in the mortgage of January 4, 1893.
There is nothing in the record to show a sub-
stitution except by the increase, and there-
fore we are not called upon to pass upon
some of the interesting questions argued by
appellants. Nor are we embarrassed by con-
siderations of the increase being in or having
passed out of the "period of nurture." Such
considerations are only important when a
subsequent purchaser or mortgagee has tak
en without notice, actual or constructive,
which we have seen the Northwestern Na-
tional Bank did not.

Lumber & Timber Company? If the bank But whatever was doubtful or disputable
was charged with notice of that mortgage it in the mortgages of appellees as to the in-
was charged with notice of its contents. "No-crease was resolved and settled by agreement
tice of a deed is notice of its whole contents,
so far as they affect the transaction in which
notice of the deed is acquired." [Hamilton
v. Royse] 2 Sch. & Lef. 315, cited and ap-
proved in Boggs v. Varner, 6 Watts & S. 473.
A purchaser is charged with notice of every
fact shown by the records, and is presumed
to know every other fact which an examina-
tion suggested by the records would have dis-
closed. Secs. 710 and 710a, Devlin, Deeds,
and cases cited. The mortgage of January
4, 1893, to the Arizona Lumber & Timber
Company was by the same mortgagor as that
of August the 30th, the one sold to the North-
western National Bank, and covered the
same sheep, and hence, under the rule an-
nounced, the bank was charged with notice
of it and of its recitals. It was not given
up or satisfied. It was preserved as an in-
dependent lien.

*The objections to testimony assigned re[631]
error in the fourth and seventh assignments
of error were not well taken. The testimony
showed the transactions and the ret
of the parties to them.
Decree affirmed.

CYRUS A. BROWN, Plff. in Err.,

v.

UNITED STATES.

It was not satisfied, appellants say, because it covered other property beside the sheep. This is an insufficient reason. If the debt it secured was paid there was no reason for retaining the lien on any property. But, whatever the reason, it was retained and affected the title. That is the material circumstance, and not in whose name it stood. It was in the chain of the title and affected GEORGE CURLEY, alias George Cully, Pl it. It would have been found if looked for, and would have notified the bank of the transactions which conducted to it and caused it to be made subject to the mortgages of the [630]appellees. We therefore think the *territo

rial courts committed no error where they assigned priority to those mortgages. Nor was it error to subordinate the attachment and judgment of the Riordan Mercantile Company to them. That company had, according to the finding of the court, actual notice.

The territorial court found that on the 18th of December, 1893, there were one thousand head of ewes remaining out of all the sheep which existed on July 10, 1890, the date of the mortgages to appellees; that the remainder of the ewes, all of the male sheep and the lambs had died, been consumed, sold, or lost. The findings are absolutely silent as to whether there were or were not other sheep in existence at that time, or at the time the decree was entered. We infer from the briefs of counsel that there were others, -the increase of those mortgaged; and there

in Err.,

V.

UNITED STATES.

(See S. C. Reporter's ed. 631-638.)

Appellate jurisdiction of the United States
court for the northern district of the In-
dian territory-capital case.

1.

2.

The appellate jurisdiction of a capital case from the United States court for the northern district of the Indian territory, given by act of Congress of March 1, 1895, to the appellate court of the United States for that territory, is exclusive, and supersedes the provisions of the acts of February 6, 1889, and March 3, 1891, respecting the jurisdiction of the Supreme Court of the United States.

This court has no appellate jurisdiction of capital cases from the United States court for the northern district of the Indian territory. Such appellate jurisdiction is vested exclusively in the United States court of appeals in the Indian territory.

[Nos. 249, 250.]

is a contention as to whether these are cov- Submitted April 25, 1898. Decided Octoered by the lien of the mortgages.

ber 24, 1898.

the increase of such ani-IN ERROR to the United States Court in
the Indian Territory to review judgments
by which Cyrus A. Brown and George Curley,
alias George Cully, were severally convicted
of murder, and sentenced to death. On
motion to dismiss in each of said cases on the
ground that this court has no appellate ju-
risdiction of said causes. Both cases dis-
missed.

Under the rule that the incident follows the principal, a mortgage of domestic animals Covers mals, though it is silent as to such increase. This court said in Arkansas Valley Land & Cattle Co. v. Mann, 130 U. S. 69 [32: 854], by Mr. Justice Harlan, "according to the maxim, partus sequitur ventrem, the brood of all tame and domestic animals belongs to the owner of the dam or mother." | 2 Bl. Com. 390. See also Pyeatt v. Powell, decided by the circuit court of appeals for the eighth circuit, 10 U. S. App. 200, and cases cited.

Statement by Mr. Justice Shiras:
Cyrus A. Brown, plaintiff in error in case
No. 249, was indicted in the United States

1

court for the northern district of the Indian | the Supreme Court of the United States has
territory, charged with the crime of murder, no jurisdiction under the law to entertain
which indictment was filed in the United said writ of error, nor to pass upon any of
States court for the Indian territory, north- the alleged errors in said record, because
ern district, sitting at Muscogee on the 10th said court has no appellate jurisdiction of
day of December, A. D. 1896.
said cause.

On the 17th day of December, A. D. 1897, he was convicted of the crime of murder in said court, and the judgment of the court sentencing him to death was made on the 24th day of December, A. D. 1897 On the 1st day of February, A. D. 1898, the plaintiff in error filed a petition in said court for a writ of error from the Supreme Court of the United States, and filed an assignment of errors. On February 8, A. D. 1898, a writ of error was allowed in said cause, and on the same day a citation was issued in said cause, service of which was acknowledged on the 16th day of February, A. D. 1898. Pursuant to the writ of error in said cause a transcript of the record in said cause was filed in the office of the clerk of the Supreme Court of the United States on the 23d day of February, A. D. 1898. The government has filed its [632] motion to dismiss the writ of error in said cause, for the reason that the Supreme Court

By the act of Congress approved March 1, 1889 (Sup. R. S. vol. 1, 2d ed. 670), there

was established a United States court for

the Indian territory. The act conferred no jurisdiction over felonies, but by the fifth

der the law to entertain said writ of error, nor to pass upon any of the alleged errors in said record, because said court has no appellate jurisdiction of said cause.

George Curley, alias George Cully, plaintiff in error in case No. 250, was indicted in the United States court for the northern district of the Indian territory, sitting at Vinita, charged with the crime of murder, which indictment was filed in open court on the 21st day of October, A. D. 1897. On the same day the defendant took a change of venue to the United States court at Muscogee, and a transcript of the record and the original indictment was forwarded to the clerk of the United States court at Muscogee, Indian territory. On the 13th day of December, A. D. 1897, at the December term of the United

of the United States has no jurisdiction un-section, exclusive original jurisdiction was conferred over all offenses against the laws of the United States committed within the Indian territory, not punishable by death or tion was conferred in all civil cases between by imprisonment at hard labor. Jurisdiccitizens of the United States who are residents of the Indian territory where the value of the thing in controversy shall amount to one hundred dollars or more. The final judg ment or decree of the court, where the value of the matter in dispute, exclusive of costs, exceeds one thousand dollars, may be reviewed and reversed or affirmed in the Supreme Court of the United States upon writ of error or appeal, in the same manner and under the same regulations as the final judgments and decrees of a circuit court.

States court for the northern district of the Indian territory, at Muscogee, the indictment heretofore found was referred to the grand jury, and upon the same day the grand jury returned into open court at Muscogee, Indian territory, a new indictment against the defendant for murder. On the 22d day of December, A. D. 1897, the defendant was found guilty of the crime of murder, and on the 24th day of December, A. D. 1897, judg ment of the court was pronounced upon said defendant. sentencing him to death.

Messrs. John K. Richards, Solicitor General, and P. L. Soper, United States Attorney, Northern District of the Indian Territory, for the United States, in support of the motions to dismiss.

Messrs. John H. Koogler and John Watkins for plaintiff in error Cyrus A. Brown, in opposition to motion to dismiss in No. 249.

Mr. W. H. Twine for plaintiff in error George Curley, in opposition to motion to dismiss in No. 250.

*Mr. Justice Shiras delivered the opinion[633} of the court:

On March 1, 1895, Congress passed an act (Sup. R. S. vol. 2, pp. 392-398) dividing the Indian territory into three judicial districts, and providing for the appointment of two additional judges. This act extended the jurisdiction of the United States court in said territory to capital cases and other infamous crimes, the jurisdiction over which had theretofore been vested in the United States courts at Fort Scott, Kansas, Fort Smith, Arkansas, and Paris, Texas, and provided that all such offenses should be prosecuted in the United States court in the Indian terri

tory after the first day of September, 1896.

The eleventh section is as follows: "That the judges of said court shall constitute a court of appeals, to be presided over by the judge oldest in commission *as chief[634] justice of said court. And said court shall

On February 11, 1898, plaintiff in error, through his attorney, W. H. Twine, filed a petition for a writ of error from the Supreme Court of the United States, and also filed his specification of error. A writ of error was allowed, on the 19th day of February. 1898, and on the 23d day of Febru-have such jurisdiction and powers in ary, 1898, service of the citation issued out said Indian territory, and such general suof this court was acknowledged. A tran- perintending control over the courts thereof, script of the entire record was filed in the as is conferred upon the supreme court of office of the clerk of the Supreme Court of the Arkansas over the courts thereof by the laws United States on March 1, 1898. The gov- of said state, as provided by chapter forty of ernment has filed its motion to dismiss the Mansfield's Digest of the Laws of Arkansas, writ of error in said case for the reason that and the provisions of said chapter, so far as

they relate to the jurisdiction and powers | the penalty of death, the conclusion might
of said supreme court of Arkansas as to ap-be too technical that Congress intended to
peals and writs of error, and as to the trial distinguish between courts of one class and
and decision of cases, so far as they are ap- of the other. But the difficulty with the sec-
plicable, shall be and they are hereby ex-tion is that it manifestly does not contem-
tended over and put in force in the Indian plate the allowance of a writ of error to any
territory.
appellate tribunal, but only to review the
"And appeals and writs of error from said final judgment of the court before which the
court in said districts to said appellate court respondent was tried, where such judgment
in criminal cases shall be prosecuted under could not otherwise be reviewed by writ of
the provisions of chapter forty-six of Mans-error or appeal. It is the final judgment of
field's Digest, by this act put in force in the a trial court that may be re-examined upon
Indian territory."
the application of the respondent, and it is
These enactments clearly provide that to that court that the cause is to be remand-
writs of error in criminal cases shall be takened, and by that court that the judgment of
to the appellate court of the United States this court is to be carried into execution.
for the Indian territory, and dispose of the The obvious object was to secure a review by
question before us unless there are other pro- some other court than that which passed
visions of the acts of Congress which prevent upon the case at nisi prius. Such review by
such a conclusion.
two other courts was not within the inten-
tion, as the judiciary act of March 3, 1891,
shows. This is made still clearer by the fur-
ther provision that no such writ of error
'shall be sued out or granted unless a peti-
tion therefor shall be filed with the clerk of
the court in which the trial shall have been
had during the same term or within such
*time, not exceeding sixty days next after the [636]
expiration of the term of the court at which
the trial shall have been had, as the court
may for cause allow by order entered of rec-
ord.' This language is entirely inapplica-
ble to the prosecution of a writ of error to
the judgment of an appellate tribunal affirm-
ing the judgment of the trial court. And
the case before us shows this."

The counsel for defendants in error contend that the act of February 6, 1889 (Sup. R. S. vol. 1, 2d ed. 638), gave to the Supreme Court the right to review. The sixth section of that act is in the following words:

"That hereafter, in all cases of conviction of crime, the punishment of which provided by law is death, tried before any court of the United States, the final judgment of such court against the respondent shall, upon the application of the respondent, be re-examined, reversed, or affirmed by the Supreme Court of the United States upon a writ of error, under such rules and regulations as said court may prescribe."

It will be observed that when this law was passed the United States court for the In- It is true that, in the present cases the dian territory did not possess jurisdiction writs of error were sued out directly to the in capital cases. That jurisdiction was sub-trial court, whereas in the case of Cross the sequently conferred. But, even if it be con- writ of error was taken to the judgment of ceded that the provisions of the act of Feb- the supreme court of the District affirming ruary 6, 1889, might have attached or be- the judgment of the trial court, and therecome applicable to the judgments of the fore some of the language quoted from the United States court for the Indian terri- opinion in the latter case is not strictly ap tory when jurisdiction in capital cases was plicable. But the reasoning of the court, [635]extended *to that court, the intention of Con- showing that it was unlikely that Congress gress is manifested to have been otherwise intended a review by two other courts than by the provision above cited from the act of the trial court, is applicable. It is not to March 1, 1895, whereby it is provided that be supposed that Congress, when it provided writs of error in capital cases shall be taken by the act of March 1, 1895, for a review or to the court of appeals of the United States writ of error in the court of appeals for Infor the Indian territory. dian territory, regarded the sixth section of the act of February 6, 1889, as also applicable.

This court had occasion to consider the effect of the act of Feruary 6, 1889, in respect to the judgments of the supreme court of the District of Columbia in capital cases, in the case of Cross v. United States, 145 U. S. 571 [36: 821], and it was there said:

"It is contended on behalf of the government that the writ of error will not lie because the supreme court of the District of Columbia is not a court of the United States, within the intent and meaning of the section. McAllister v. United States, 141 U. S. 174 [35: 693], is cited with the decisions referred to therein as sustaining that view, but it is to be remembered that that case referred to territorial courts only, and, moreover, if the disposal of the motion turned on this point, the words 'any court of the United States,' are so comprehensive that, used as they are in connection with convictions subject to

The counsel for the defendants in error cite in their briefs the fifth and thirteenth sections of the act of March 3, 1891, establishing the United States circuit courts of appeals, providing that appeals or writs of error may be taken from the district or circuit courts direct to the Supreme Court of the United States in cases of capital crimes, and providing that appeals and writs of error may be taken from the decisions of the United States court in the Indian territory to the Supreme Court of the United States, or to the cirucit court of appeals in the eighth circuit, in the same manner and under the same regulations as from the circuit or district courts of the United States.

Of course as, when this act was passed, the
United States court in the Indian territory

ministratrix of Henry Korte, Deceased, et
al., Appts.,

บ.

DOLORITAS MARTIN DE CORDOBA,
José Manuel Cordoba, Josefita Martin
de Duran, et. al.,

(See S. C. Reporter's ed. 638–641.)

Appeal from supreme court of territory—re
lease by mother of illegitimate children-
when will not cut off inheritance.

1.

had no jurisdiction over capital crimes, Con- | WILLIAM NAEGLIN, Annie Naeglin, Adgress did not contemplate any appeal or writ of error in such cases. And when, by the act of March 1, 1895, jurisdiction of the United States court in the Indian territory was extended to capital cases, and a court of [637]appeals was established, with power to entertain appeals and writs of error, the act of March 3, 1891, cannot be regarded as applicable in such cases. Where a statute provides for a writ of error to a specified court of appeals it must be regarded as a repeal of any previous statute which provides for a writ of error to another and different court. The decisions of the court of appeals of the United States in the Indian territory are final except so far as they are made subject to review by some express provision of law. In the eleventh section of the act of March 1, 1895, it is provided that "appeals and writs of error from the final decision of said appellate court shall be allowed and may be taken to the circuit court of appeals for the eighth judicial circuit in the same manner and under the same regulations as appeals are taken from the circuit courts of the United States;" but it is not claimed by the counsel for the plaintiff in error that this provision applies to capital cases; and see the case of Folsom v. United States, 160 U. S. 121 [40: 363].

It has been held by this court that the court established in the Indian territory, though a court of the United States, is not

a district or circuit court of the United States. Re Mills, 135 U. S. 268 [34: 110]. We accept the contention of the Solicitor General on behalf of the government, that the court of appeals in the Indian territory, being a court of the United States, is analogous to the supreme court of the District of Columbia, and bears the same relation to the trial court in the Indian territory as the supreme court of the District of Columbia bore to the trial court in the District.

And it was held in Ex parte Bigelow, 113 U. S. 329 [28: 1006], that no appeal could be taken or writ of error sued out to the supreme court of the District of Columbia in a

capital case, the court saying: "No appeal or writ of error in such case as that lies to this court. The act of Congress has made the judgment of that court conclusive, as it had a right to do, and the defendant, having one review of his trial and judgment, has no special reason to complain." Re Heath, 144 U. S. 92 [36: 358]; Cross v. Burke, 146 U. S. 84 [36: 897]. [638] *Our conclusion is that we have no appellate jurisdiction of capital cases from the United States court for the northern district of the Indian terory, and that such appellate jurisdiction is vested exclusively in the United States court of appeals in the Indian territory.

The motion is allowed, and the writs of error in these cases are dismissed. 171 U.S.

2.

3.

On appeal from the supreme court of a territory, when no jury was had and there are no questions as to the admission or exclusion of testimony, the only question to consider is whether the findings of fact sustain the decree.

A release by the mother of illegitimate children, in her own right and for them, of all claims against the father, without the sanction of any tribunal, will not cut off a right of the children to inherit from him.

A natural guardian has no power to release the claim of a ward to an inheritance without the sanction of some tribunal.

[No. 35.]

Argued October 13, 1898. Decided October
24, 1898.

APPEAL from the Supreme Court of the
Territory of New Mexico reversing the
decree of the District Court of the County of
Mora, Fourth Judicial District in said Ter-
ritory, in favor of the defendants, and re-
manding the case to the District Court with
instructions to enter a decree in favor of the
plaintiffs, in an action brought by Doloritas
Martin de Cordoba et al. against William
Naeglin et al. to establish the right of the
plaintiffs as the children and heirs of one
Frederick Metzger. Affirmed.

See same case below, 7 N. M. 678.

Statement by Mr. Justice Brewer:
On March 29, 1886, the appellees, Do-
loritas Martin de Cordoba et al., filed their
bill in the district court of the county of
Mora, fourth judicial district, territory of
New Mexico, to establish their rights as the
children and heirs of one Frederick Metzger.
After answer the case was referred to a mas-
ter, who reported findings of fact and con-
clusions of law in favor of the plaintiffs.
Upon a hearing in the district court a de-
cree was entered adversely to the conclusions
of the master and for the defendants. On
appeal to the supreme court of the territory
that decree was on August 24, 1895, reversed,
and one entered remanding the case to the
district court, with instructions to enter a
decree in conformity with the findings and
conclusions of the master. Thereupon the de-
fendants appealed to this court.

315

7

174

At the time of entering the decree, and also | Foundry & Machine Co. 151 U. S. 47 [38: 1989]of overruling a "petition for rehearing, no 229]. statement of facts was prepared by the supreme court, and no other determination of the facts than such as appears from the direction to enter a decree in conformity with the findings and recommendations of the master. But after the supreme court had adjourned, an application was made to have the findings of fact made by the master in-serve that no doubtful question of law is precorporated into the record as a statement and finding of facts by that court, for the purpose of an appeal, and upon that application the following order was entered:

The order signed in vacation by the several members of the supreme court cannot be considered an order of the court. Assuming, however, for the purposes of this case, that, in view of the general language in the opinion of the court, we may take the findings of the master as its statement of facts, we obsented for our determination. The master finds that Metzger was the father of the appellees, and that he owned certain property. These are questions of fact, resting upon testimony, concluded, so far as this court is concerned, by the findings, and into which it

And now the foregoing statement and finding as to the facts proven and estab-is not our privilege to enter. lished by the evidence in each of said causes are ordered to be incorporated in the record of said supreme court as part thereof as fully as we may be thereunto empowered, the July term of the supreme court having been adjourned on the 26th day of September, A. D. 1896, and this order made and signed by each of the judges while in his district respectively. Thomas Smith, Chief Justice. Needham C. Collier, Associate Justice, Supreme Court of New Mexico. Signed at Silver City, in the third judicial district.

Gideon D. Bantz, Associate Justice of the Supreme Court of New Mexico and Presiding Judge of the Third Judicial District Court.

Signed at Santa Fé, N. M., in the first judicial district.

N. B. Laughlin, Associate Justice of the Supreme Court and Judge of the First Judicial District.

It appears from the bill, answer, and findings that Frederick Metzger, though an unmarried man, was the father of several children by different women, and this suit is one between the several illegitimate children to determine their respective rights to share in his estate. The counsel for appellants says in his brief: "The bill of complaint and the testimony present for determination of the court two [640]questions: First, What estate *and property did Metzger own at the time of his death? and, second, Who is entitled to that estate?"

Mr. Harvey Spalding for appellants.
No counsel for appellees.

[640] *Mr. Justice Brewer delivered the opin-
ion of the court:

No question is made in this record as to the admission or exclusion of testimony. There being no jury the case comes here on appeal, and the only question we can consider is whether the findings of fact sustain the decree. 18 U. S. Stat. 27; Stringfellow v. Cain, 99 U. S. 610 [25:421]; Cannon v. Pratt, 99 U. S. 619 [25:446]; Neslin v. Wells, 104 U. S. 428 [26:802]; Hecht v. Boughton, 105 U. S. 235, 236 [26:1018]; Gray v. Howe, 108 U. S. 12 [27:634]; Eilers v. Boatman, 111 U. S. 356 [28:454]; Zeckendorf v. Johnson, 123 U. S. 617 [31:277]; Sturr v. Beck, 133 U. S. 541 [33:761]; Mammoth Min. Co. v. Salt Lake

While under the common law illegitimate children did not inherit from their father, the statutes of New Mexico introduced a new rule of inheritance (Comp. Laws New Mexico, 1884, § 1435, p. 680): "Natural children, in the absence of legitimate, are heirs to their father's estate, in preference to the ascendants, and are direct heirs to the mother if she die intestate." In other words, under this statute, there being no legiti-[641] mate children, illegitimate children inherit.

It appears that on March 19, 1875, and while Metzger was living, the mother of these plaintiffs, then minors, in her own right and for the minors, receipted and relinquished all claims against him. Without stopping to consider what was meant by that release, and giving to it all the scope which its language may suggest, we remark that a natural guardian has no power to release the claim of a ward to an inheritance without the sanction of some tribunal. Woerner's American Law of Guardianship, p. 185, and following. The decree is affirmed.

LEWIS PIERCE et al., Plffs. in Err.,

v.

SOMERSET RAILWAY.

(See S. C. Reporter's ed. 641-650.)

Federal question-when state judgment will not be reviewed-Federal right may be waived question of waiver is not Federal question.

1.

2.

3.

4.

The question whether a state statute Impairs the obligation of a contract is a Federal question; but the question whether the defense of estoppel by laches and acquiescence is established is not a Federal question.

A judgment of the state court, based on two distinct grounds, each of which is sufficient to sustain the judgment, and one of which involves no Federal question, cannot be reviewed on writ of error by this court.

A person may, by his acts or omission to act, waive a right which he might otherwise have under the Constitution of the United States.

Whether or not a person has lost a right under the Federal Constitution by his action or failure to act is not a Federal question which will sustain a writ of error to a state court.

[No. 12.]