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The claim of the mortgage is to be enforced *After stating the case, Mr. Justice Mo-(627) on the identical property included in the Kenna delivered the opinion of the court: mortgage.

The contest is for priority. The terri. Kelly v. Reid, 57 Miss. 89.

torial supreme court awarded it to the mortUpon breach of the conditions the mort. gages of the appellees. The appellants con-[628] gagée may take possession of the property, tend that this was error because of the fact and henceforth treat it as his own. He that the mortgages respectively covered may sell it or give it away, squander or des. 5,000 and 1,000 head of sheep, and that Ful. troy it.

ton owned 6,200 head, and that hence the Acyland v. Badger, 35 Cal. 404; Wright mortgages were invalid on account of insuffiv. Ross, 36 Cal. 414; Pom. Eq. Jur. § 1229; cient descriptions. The mortgages do not Parshall v. Eggert, 54 N. Y. 18; Blake v. state that Fulton owned a greater number Corbett, 120 Å. Y. 327; Tompkins v. Batic, than those he mortgaged, but the fact is 11 Neb, 147, 38 Am. Rep. 361.

found by the court. Messrs. Fred Herrington and Cass E. The rule is laid down that, as to third Herrington, for appellees :

persons who have acquired interests, a deA mortgage of a certain number out of a scription in a mortgage of a given number of larger number is not void. Örsheer v. Watt, 91 Tex. 124; Leighton cient. Jones, Chatt. Mortg. 88 56 et seq.,

articles out of a larger number is not suffi5. Stuart, 19 Neb. 546; Frost v. Citizens' and cases cited. Nat. Bank, 68 Wis. 234; Gurley v. Davis, 39

But such a mortgage is valid against those Ark. 394.

who know the facts. Cole v.Green, 77 Iowa, Such mortgage is good as to parties hav. 307; Clapp v. Trowbridge, 74 Iowa, 550. ing notice.

The mortgage of January 4, 1893, executed Clapp v. Trowbridge, 74 Iowa, 550.

by Fulton to the Arizona Lumber & Timber The rights of appellants are to be deter: Company was undoubtedly taken by the latmined by the circumstances existing at the ter, not only with actual notice, but it was time their rights were acquired. Cole v. Green, 77 Iowa, 307; Interstate

expressly made subject to the prior ones to Galloroay Cattle Co. v. McLain, 42 Kan. 680. appellees. The finding of the court is: “At Appellee bank's mortgage covered the in- Arizona Lumber & Timber Company, per

the instance of appellees said appellant, Pyeatt v. Powell, 10 U. S. App. 200, il serted in said last-mentioned mortgage,

to be in

mitted the following recital
Fed. Rep. 551, 2 C. C. A. 367; Arkansas namely: "This being subject to a mortgage
Valley Land & Cattle Co. v. Mann, 130 U.
S. 78, 32 L. ed. 857; Fowler v. Merrill, 11

on 5,000 of above sheep to Arizona Central How. 375, 13 L. ed. 736; Cahoon v. Miers. Bank, and one on 1,000 head, and the resi67 Md. 573; Meyer v. Cook, 85 Ala. 417;

dence property to John Vories, said number, Funk v. Paul, 64 Wis

. 35, 54 Am. Rep. 576. as described in mortgages, to be kept good Where two mortgages are of record, one for the foregoing recital in the mortgage of

out of increase.' There was consideration of which correctly describes the property and refers to the other as being upon the January 4, 1893, namely, that the appellees same property, the description of such other should forbear to foreclose their mortgages, mortgage is rendered definite, and the record and should release their claim on the wool is sufficient to impart notice to the world.

clip of 1893, the wool at that time not having Tompson v. Anderson, 94 Iowa, 554; New

been shorn.' man v. Tymeson, 13 Wis. 172, 80 Am. Dec.

The court further finds that on August 735.

30, 1893, Fulton paid to the Arizona Lumber Means of knowledge, with the duty o: & Timber Company $3,000 out of the proceeds using them, are in equity equivalent to of the wool from the mortgaged sheep, sekuowledge itself.

cured from the company an advance of $500, Cordova v. Hood, 17 Wall. 1, 21 L. ed. and for that and the amount due on his note 587.

“executed his negotiable promissory note The holder of a mortgage “in terms” made payable in ninety days, securing the same subject to another mortgage cannot defeat by a chattel mortgage for the sum of $6,000.” it upon technical grounds.

In this mortgage there was no recital or refEaton v. Tuson, 145 Mass. 218; Flory v.

erence to the existence of any other mortComstock, 61 Mich. 522; Gammon v. Buli, gage. On the 29th of September, 1893, and 86 Iowa, 754; Cassidy v. Harrelson, i Colo? prior to this *maturity, the “appellant, the[629) App. 458; Clapp v. Halliday, 48 Ark. 258;

Arizona Lumber & Timber Company, repreHoagland v. Shampanore, 37 N. J. Eq. 588. senting that said mortgage was a first lien,

A written agreement, although not signed sold, indorsed, and delivered the note and by the parties, will, if orally assented to by mortgage to the appellant the Northwestern them, constitute the agreement between National Bank." It is this note and mort. them.

gage that are in controversy and which are Dutch v. Mead, 4 Jones & S. 427; Farmer claimed as prior liens to the mortgages of v. Gregory, 78 Ky. 475; Bacon v. Daniels, appellees. The bank is found to be an inno37 Ohio St. 279.

cent purchaser for value. By this is meant A party is presumed to have actual notice that it had no actual notice of the prior and to have consented to all that appears in mortgages. Did the law impute notice to it? his own conveyance.

Certainly not by the record of the mortgages Finley v. Simpson, 22 N. J. L. 311, 53 Am. to appellees. Did it by the record of the Dec. 252.

mortgage of January 4, 1893, to the Arizona

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v.

Lumber & Timber Company? If the bank But whatever was doubtful or disputable was charged with notice of that mortgage it in the inortgages of appellees as to the inwas charged with notice of its contents. “No crease was resolved and settled by agreement tice of a deed is notice of its whole contents, between all who had interests, and was exso far as they affect the transaction in which pressed in the mortgage of January 4, 1893. notice of the deed is acquired.” [Hamilton There is nothing in the record to show a subv. Royse] 2 Sch. & Lef. 315, cited and ap- stitution except by the increase, and thereproved in Boggs v. Varner, 6 Watts & S. 473. fore we are not called upon to pass upon

A purchaser is charged with notice of every some of the interesting questions argued by fact 'shown by the records, and is presumed appellants. Nor are we embarrassed by conto know every other fact which an examina- siderations of the increase being in or having tion suggested by the records would have dis passed out of the “period of nurture.” Such closed. Secs. 710 and 710a, Devlin, Deeds, considerations are only important when a and cases cited. The mortgage of January subsequent purchaser or mortgayae has tak. 4, 1893, to the Arizona Lumber & Timber en without notice, actual or constructive, Company was by the same mortgagor as that which we have seen the Northwestern Nuof August the 30th, the one sold to the North- tional Bank did not. western National Bank, and covered the *The objections to testimony asuugned re[631) same sheep, and hence, under the rule an error in the fourth and seventh assignments nounced, the bank was charged with notice of error were not well taken. The testimnas of it and of its recitals. It was not given showed the transactions and the rentines up or satisfied. It was preserved as an in. of the parties to them. dependent lien.

Decree affirmed. 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 CYRUS A. BROWN, Piff. in Err., reason for retaining the lien on any property, But, whatever the reason, it was retained and

UNITED STATES. affected the title. That is the material cir. cumstance, and not in whose name it stood. It was in the chain of the title and affected GEORGE CURLEY, alias George Cully, PLH it. It would have been found if looked for,

in Err., and would have notified the bank of the transactions which conducted to it and caused it

UNITED STATES.
to be made subject to the mortgages of the
[630]appellees. We therefore think the *territo- (See $. C. Reporter's ed. 631-638.)

rial courts committed no error where they as.
signed priority to those mortgages. Nor Appellate jurisdiction of the United Siates
was it error to subordinate the attachment

court for the northern district of the Inand judgment of the Riordan Mercantile

dian territory-capital case. Company to them. That company had, ac- 1.

The appellate jurisdiction of a capital case cording to the finding of the court, actual no- from the United States court for the northern tice.

district of the ladian territory, given by act The territorial court found that on the of Congress of March 1, 1895, to the appellate 18th of December, 1893, there were one thous- court of the United States for that territory, and head of ewes remaining out of all the

is exclusive, and supersedes the provisions of sheep which existed on July 10, 1890, the

the acts of February 6, 1889, and March 3, date of the mortgages to appellees; that the

1891, respecting the jurisdiction of the Su

preme Court of the United States. remainder of the ewes, all of the male sheep

2. and the lambs had died, been consumed, sold,

This court has no appellate jurisdiction of

capital cases from the United States court or lost. The findings are absolutely silent as

for the northern district of the Indian terri. to whether there were or were not other

tory. Such appellate jurisdiction is vested sheep in existence at that time, or at the exclusively in the United States court of aptime the decree was entered. We infer from peals in the Indian territory. the briefs of counsel that there were others, -the increase of those mortgaged; and there

[Nos. 249, 250.] is a contention as to whether

hese are cov. Submitted April 25, 1898. Decided Octoered by the lien of the mortgages.

ber 24, 1898. Under the rule that the incident follows the principal, a mortgage of domestic ani: Inhe Indian Territory to review judgments

N ERROR to the United States Court in mals covers the increase of such ani. mals, though it is silent as to such increase. by which Cyrus A. Brown and George Curley, This court said in Arkansas Valley Land & alias George Cully, were severally convicted Cattle Co. v. Mann, 130 U. S. 69 (32: 854), of murder, and sentenced to death. On by Mr. Justice Harlan,

"according motion to dismiss in each of said cases on the to the maxim, partus sequitur ventrem, the ground that this court has no appellate jubrood of all tame and domestic animals be. risdiction of said causes. Both cases dislongs to the owner of the dam or mother.” | missed. 2 Bl. Com. 390. See also Pyeatt v. Powell, decided by the circuit court of appeals for the Statement by Mr. Justice Shiras: eighth circuit, 10 U. S. App. 200, and cases Cyrus A. Brown, plaintiff in error in caso cited.

No. 249, was indicted in the United States

.

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

Messrs. John K. Richards, Solicitor said court, and the judgment of the court General, and P. L. Soper, United States Atsentencing him to death was made on the torney, Northern District of the Indian Ter. 24th day of December, A. D. 1897 On the ritory, for the United States, in support of 1st day of February, A. D. 1898, the plaintiff the motions to dismiss. in error filed a petition in said court for a Messrs. John H. Koogler and John writ of error from the Supreme Court of the Watkins for plaintiff in error Cyrus A. United States, and filed an assignment of Brown, in opposition to motion to dismiss errors. On February 8, A. D. 1898, a writ of in No. 249. error was allowed in said cause, and on the Mr. W. H. Twine for plaintiff in error same day a citation was issued in said cause, George Curley, in opposition to motion to disservice of which was acknowledged on the miss in No. 250. 16th day of February, A. D. 1898. Pursuant to the writ of error in said cause a transcript

*Mr. Justice Shiras delivered the opinion(633) of the record in said cause was filed in the of the court: office of the clerk of the Supreme Court of the United States on the 238 day of Febru: 1889 (Sup. R. S. vol. 1, 2d ed. 670), there

By the act of Congress approved March 1, ary, A. D. 1898. The government has filed its

was established a United States court for [632]motion to *dismiss the writ of error in said the Indian territory. The act conferred no

cause, for the reason that the Supreme Court jurisdiction over felonies, but by the fifth of the United States has no jurisdiction un section, exclusive original jurisdiction was der the law to entertain said writ of error, nor conferred over all offenses against the laws to pass upon any of the alleged errors in said of the United States committed within the record, because said court has no appellate Indian territory, not punishable by death or jurisdiction of said cause. George Curley, alias George Cully, plain-| by imprisonment at hard labor. Jurisdic

tion was conferred in all civil cases between tiff in error in case No. 250, was indicted in citizens of the United States who are resithe United States court for the northern dis- dents of the Indian territory where the value trict of the Indian territory, sitting at Vin. of the thing in controversy shall amount to ita, charged with the crime of murder, which one hundred dollars or more. The final judg. indictment was filed In open court on the ment or decree of the court, where the value 21st day of October, A. v. 1897. On the same of the matter in dispute, exclusive of costs, day the defendant took a change of venue to

exceeds one thousand dollars, may be rethe United States court at Muscogee, and a viewed and reversed or affirnied in the Sutranscript of the record and the original in-preme Court of the United States upon writ dictment was forwarded to the clerk of the of error or appeal, in the same manner and United States court at Muscogee, Indian ter- under the same regulations as the final judg. ritory. On the 13th day of December, A. D. ments and decrees of a circuit court. 1897, at the December term of the United

On March 1, 1895, Congress passed an act States court for the northern district of the (Sup. R. S. vol. 2, pp. 392–398) dividing the Indian territory, at Muscogee, the indict. Indian territory into three judicial districts, ment heretofore found was referred to the and providing for the appointment of two adgrand jury, and upon the same day the grand ditional judges. This act extended the ju. jury returned into open court at Muscogee, risdiction of the United States court in said Indian territory, a new indictment against territory to capital cases and other infamous the defendant for murder. On the 22d day crimes, the jurisdiction over which had of December, A. D. 1897, the defendant was theretofore been vested in the United States found guilty of the crime of murder, and on courts at Fort Scott, Kansas, Fort Smith, the 24th day of December, A. D. 1897, judg. Arkansas, and Paris, Texas, and provided ment of the court was pronounced upon said that all such offenses should be prosecuted in defendant, sentencing him to death.

the United States court in the Indian terri. On February 11, 1898, plaintiff in error, tory after the first day of September, 1896. through his attorney, W. H. Twine, filed a The eleventh section is as follows: petition for a writ of error from the Su

"That the judges of said court shall conpreme Court of the United States, and also stitute a court of appeals, to be presided over filed his specification of error. A writ of by the judge oldest in commission *as chief(634) error was allowed, on the 19th day of Feb- justice of said court. And said court shall ruary. 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 su. of 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 secplicable, shall be and they are hereby ex- tion is that it manifestly does not contemtended over and put in force in the Indian plate the allowance of a writ of crror to any territory.

appellate tribunal, but only to review the "And appeals and writs of error from said final judgme 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 taken ed, 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 Buch a conclusion.

two other courts was not within the intenThe counsel for defendants in error con- tion, as the judiciary act of March 3, 1891, tend that the act of February 6, 1889 (Sup. shows. This is made still clearer by ihe furR. S. vol. 1, 2d ed. 638), gave to the Supreme ther provision that no such writ of error Court the right to review. The sixth section shall be sued out or granted unless a peti. of that act is in the following words:

tion therefor shall be filed with the clerk of "That hereafter, in all cases of conviction the court in which the trial shall have been of crime, the punishment of which provided had during the same term or within such by law is death, tried before any court of *time, not exceeding sixty days next after the [ 636) the United States, the final judgment of such expiration of the term of the court at which court against the respondent shall, upon the the trial shall have been had, as the court application of the respondent, be re-exam- may for cause allow by order entered of recined, reversed, or affirmed by the Supreme ord.' This language is entirely inapplica

ourt of the United States upon a writ of ble to the prosecution of a writ of error to error, under such rules and regulations as the judgment of an appellate tribunal affirmsaid court may prescribe.”

ing the judgment of the trial court. And It will be observed that when this law was the case before us shows this." 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 aflirming ruary 6, 1889, might have attached or be the judgment of the trial court, and there come 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 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 This court had occasion to consider the the act of February 6, 1889, as also applicaeffect of the act of Feruary 6, 1889, in re ble. spect to the judgments of the supreme court The counsel for the defendants in error of the District of Columbia in capital cases, cite in their briefs the fifth and thirteenth in the case of Cross v. United States, 145 U. sections of the act of March 3, 1891, estabS. 571 [36: 821), and it was the said: lishing the United States circuit courts of

"It is contended on behalf of the govern- appeals, providing that appeals or writs of ment that the writ of error will not lie be- error may be taken from the district or cir. cause the supreme court of the District of cuit courts direct to the Supreme Court of Columbia is not a court of the United States, the United States in cases of capital crimes, within the intent and meaning of the section. and providing that appeals and writs of er. McAllister v. United States, 141 U. S. 174 ror may be taken from the decisions of the (35: 693], is cited with the decisions referred United States court in the Indian territory to therein as sustaining that view, but it is to the Supreme Court of the United States, to be remembered that that case referred to or to the cirucit court of appeals in the territorial courts only, and, moreover, if the eighth circuit, in the same manner and under disposal of the motion turned on this point, the same regulations as from the circuit or the words 'any court of the United States,' district courts of the United States. are so comprehensive that, used as they are Of course as, when this act was passed, the in connection with convictions subject to United States court in the Indian territory

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had no jurisdiction over capital crimes, Con. I WILLIAM NAEGLIN, Annie Naeglin, Ad. gress

did not contemplate any appeal or writ ministratrix of Henry Korte, Deceased, et of error in such cases. And when, by the al., Appts., act of March 1, 1895, jurisdiction of the United States court in the Indian territory DOLORITAS MARTIN DE CORDOBA,

was extended to capital cases, and a court of José Manuel Cordoba, Josefita Martin (637]appeals was established, with power to en.

de Duran, et al., tertain appeals and writs of error, the act of March 3, 1891, cannot be regarded as appli. (See S. C. Reporter's ed. 638–841.) cable in such cases. Where a statute provides for a writ of error to a specified court Appeal from supreme court of territory-ro of appeals it must be regarded as a repeal of lease by mother of illegitimate children any previous statute which provides for a when will not cut off inheritance. writ of error to another and different court.

The decisions of the court of appeals of 1. On appeal from the supreme court of a terthe United States in the Indian territory are ritory, when no jury was had and there are final except so far as they are made subject no questions as to the admission or exclusion to review by some express provision of

of testimony. the only question to consider law. In the eleventh section of the act of

is whether the findings of fact sustain the March 1, 1895, it is provided that “appeals

decree.

2. and writs of error from the final decision of

A release by the mother of illegitimate

children, in her own right and for them, of said appellate court shall be allowed and

all claims against the father, without the may be taken to the circuit court of appeals

sanction of any tribunal, will not cut off a for the eighth judicial circuit in the same right of the children to inherit from him. manner and under the same regulations as 3. A natural guardian has no power to reappeals are taken from the circuit courts of lease the claim of a ward to an inheritance the United States;" but it is not claimed by without the sanction of some tribunal. the counsel for the plaintiff in error that this provision applies to capital cases; and see

[No. 35.] the case of Folsom v. United States, 160 U. 8. 121 [40: 363].

Argued October 19, 1898. Decided October It has been held by this court that the

24, 1898. court established in the Indian territory, a district of

Territory States. Re Mills, 135 U. S. 268 [34: 110]. decree of the District Court of the County of

We accept the contention of the Solicitor Mora, Fourth Judicial District in said Ter. General on behalf of the government, that ritory, in favor of the defendants, and rethe court of appeals in the Indian territory, panding the case to the District Court with being a court of the United States, is anal- instructions to enter a decree in favor of the ogous to the supreme court of the District of plaintiffs, in an action brought by Doloritas Columbia, and bears the same relation to the Martin de Cordoba et al. Against William trial court in the Indian territory as the su. Naeglin et al. to establish the right of the preme court of the District of Columbia bore plaintiffs as the children and heirs of one to the trial court in the District.

Frederick Metzger. Affirmed. And it was held in E, parte Bigelow, 113 See same case below, 7 N. M. 678. U. S. 329 [28: 1006), that no appeal could be taken or writ of error sued out to the su- Statement by Mr. Justice Brewer: preme court of the District of Columbia in a On March 29, 1886, the appellees, Docapital case, the court saying: “No appeal loritas Martin de Cordoba et al., filed their or writ of error in such case as that lies to bill in the district court of the county of this court. The act of Congress has made Mora, fourth judicial district, territory of the judgment of that court conclusive, as it New Mexico, to establish their rights as the had a right to do, and the defendant, having children and heirs of one Frederick Metzger. one review of his trial and judgment, has no After answer the case was referred to a mas. special reason to complain.” Re Heath, 144 ter, who reported findings of fact and con. U. S. 92 [36: 358); Cross v. Burke, 146 U. S. clusions of law in favor of the plaintiffs. 84 [36: 897].

Upon a hearing in the district court a de[638] *Our conclusion is that we have no appel- cree was entered adversely to the conclusions

late jurisdiction of capital cases from the of the master and for the defendants. On United States court for the northern dis- appeal to the supreme court of the territory trict of the Indian ter ory, and that such that decree was on August 24, 1895, reversed, appellate jurisdiction is vested exclusively and one entered remanding the case to the in the United States court of appeals in the district court, with instructions to enter a Indian territory.

decree in conformity with the findings and The motion is allowed, and the writs of br. conclusions of the master. Thereupon the de ror in these cases aro dismissed

fendants appealed to this court. 171 U. S.

315

thaistrict court if the United States

, in ined A PPFA to from the Supreme Court of the

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