on said described sheep, and by means there asking for a foreclosure of its said alleged mortgage, the same being the above-entitled cause. "That said action was tried and judgment was rendered foreclosing said alleged mortgages of both of appellees herein and also the said mortgage dated January 4, 1893, of "That on December 18, 1893, said Fulton, said Arizona Lumber & Timber Company and being then indebted to Riordan Mercantile the mortgage owned by said Northwestern Company, one of the appellants herein and National Bank as aforesaid, in which said a defendant in the court below, in the sum of judgment said court adjudged that appellees $810.91, it brought its action in said district have a prior and first lien on said property, court against said Fulton whereby to collect viz., the Arizona Central Bank upon 5,000 the same, and at the same time caused to be sheep of the Fulton mark by reason of its issued out of the clerk's office of said court a said mortgage and the said Vories on 1,000 writ of attachment, which was then levied sheep of the Fulton mark by reason of his [624]on the property following, namely: 'All the said mortgage; and said court decreed and right, title, and interest of the defendant ordered that an order of sale issue for the Harry Fulton in and to the following-de-sale of all of said property to the sheriff of scribed sheep: 2,926 ewes, marked hole in said county, and that the proceeds arising left ear, split in right; 900 wether sheep, therefrom be divided by the sheriff and apmarked hole in right ear, split in left ear; plied as follows, namely, at the ratio of five 1,287 lambs, ewe lambs marked hole in left dollars to said Arizona Central Bank and one ear, split in right, wether lambs marked dollar to said Vories; that in case anything hole in right ear, split in left; 118 rams,' should be left after the payment of said two same being all of the sheep then owned by mortgages to said bank and Vories, the same said Fulton. should be applied to the payment of the judgments of said Northwestern National Bank and said Arizona Lumber & Timber Company and Riordan Mercantile Company in the order named." There are seventeen assignments of errors, which are somewhat confused. They are grouped and presented by counsel under seven heads as follows: "That on 16th March, 1894, judgment was rendered in said suit in favor of said plaintiff company and against said Fulton, for said amount, and said attachment lien was foreclosed; that on the 31st day of March, 1894, the sheriff of said county of Coconino, by virtue of and pursuant to said judgment, sold said property and delivered the same to the appellant Riordan Mercantile Company, "First. In the first assignment of error who then entered into the possession there-it is set forth that the trial court erred in of, was so in the possession thereof when this adjudging, and the territorial supreme court cause was tried in the lower court, and are erred in affirming said judgment, that the still in possession thereof. "That by virtue of said writ of attach-mortgages of the appellees were prior liens ment the sheriff attached all the sheep then ton at the time of the execution of said morton all of the sheep owned by defendant Fulowned by said Fulton, and that on said day, to wit, on the 18th day of December, 1893, gages, even though said mortgages had been there were of said sheep only 1,000 head of good and prior liens on the sheep specified ewes remaining out of all the sheep that existed on July 10, 1890, the date of said alleged mortgages to appellees; that the remainder of said ewes, all the male sheep and the lambs, had by that time died, been con sumed, sold, or lost. "That subsequent to the making of said alleged mortgages to said appellees, an oral agreement between them and the said Fulton was made that the securities of appellees were to be kept good out of the increase by substitution, the consideration therefor be ing that said Fulton might sell and dispose of the said sheep without interference from appellees. therein. eighth assignments of error it is set forth "That Sisson, a witness for appellants in "That in said district court said Arizona Central Bank brought its suit as plaintiff against said Fulton, Vories, Donahue as sheriff, the Arizona Lumber & Timber Company, [625]the *Riordan Mercantile Company, and the Northwestern National Bank, as defendants, lants, testimony concerning a conversation between J. H. Hoskins, John Vories, F. W. Sisson, and Harry Fulton, and evidence relative to an alleged agreement, and evidence tending to prove a breach of contract between the appellees and appellant Arizona Lumber & Timber Company. "Fourth. The trial court erred, as set forth in the fifteenth and sixteenth assignments, of description that will serve to distinguish the property embraced therein from all other property of the same kind. Pingree, Chat. Mortg. § 142. in adjudging that on the date of its decree "Fifth. The trial court erred, as set forth in the eleventh assignment, in adjudging that said mortgages of appellees were mere securities for debts, the legal title to said sheep remaining in said Fulton, notwithstanding said mortgages, and in adjudging that said sheep should be sold and the proceeds paid to said Arizona Central Bank and said Vories, in the proportion of five dollars to the former and one to the latter. "Sixth. The trial court erred, as set forth in the seventeenth assignment, in adjudging that appellant Northwestern National Bank was bound by said pretended agreement of substitution or was bound by said pretended mortgages of appellees, or that said mortgages were prior liens on said property, or on any of it, to the mortgage owned by said appellant. Stonebraker v. Ford, 81 Mo. 538; Fowler v. Hunt, 48 Wis. 345; Richardson v. Alpena Lumber Co. 40 Mich. 203; Blakely v. Patrick, 67 N. C. 40, 12 Am. Rep. 600; Kelly v. Reid, 57 Miss. 89; Parsons Sav. Bank 7. Sargent, 20 Kan. 576; Rood v. Welch, 28 Conn. 157; Newell v. Warner, 44 Barb. 258; Payne v. Wilson, 74 N. Y. 348. There can be no agreement by the parties, which will bind others, that there shall be a substitution of other property for that first specified. Hutton v. Arnett, 51 Ill. 198; Elliott v. Long, 77 Tex. 467. That the mortgages were to be kept good cut of the increase by substitution, the consideration therefor being that Fulton might sell and dispose of the sheep without interference from appellees, would of itself render the mortgage absolutely void. Peiser v. Peticolas, 50 Tex. 638, 32 Am. Rep. 621. The increase of the sheep attempted to be mortgaged, if there were increase, would therefore not be covered thereby. Winter v. Landphere, 42 Iowa, 471; Enright v. Dodge, 64 Vt. 502; Darling v. Wilson, 60 N. H. 59, 49 Am. Rep. 305; Rogers v. Gage, 59 Mo. App. 107. Substituted property is not held by virtue of the mortgage, but by virtue of the agree ment of the parties, whereby an equitable lien, cognizable only in a court of equity, arises in favor of the mortgagee. Pom. Eq. Jur. § 1235; Simmons v. Jenkins, 76 III. 479. "Seventh. In the sixth, ninth, tenth, [627]twelfth, thirteenth, and fourteenth assignments it is set forth that the court erred in denying and overruling defendants' motion for a new trial of said cause; and in deciding that the mortgage to said appellee, the Arizona Central Bank, conveyed five thousand head of sheep, marked: ewes with hole in left ear and split in right, wethers with hole in right ear and split in left ear, and that a thousand more of said sheep were conveyed by mortgage to said appellee Vories, with the same marks; and in adjudging that the property included in the said attachment lien of the said Riordan Mercantile Company and sold and delivered to said company thereunder was the same property that is conveyed, or attempted to be conveyed, by the mortgages of said appellees; and in adjudging that the rights, title, and interests obtained by said Riordan Mercantile Company, by virtue of said attachment lien and sale, was subject to the alleged rights of said appellees by virtue of their said pretended mortgages; and in adjudging that appellants Riordan Mercantile Company and Arizona Lumber & Timber Company had actual notice of the Pom. Eq. Jur. § 726; Hunt v. Bullock, 23 property conveyed by the said alleged mort-Ill. 320; Powers v. Freeman, 2 Lans. 127; gages of said appellees; and in adjudging Titus v. Mabbe, 25 Ill. 257; Rhines v. Phelps, that F. W. Sisson, as the treasurer of 8 Ill. 455. said Riordan Mercantile Company, agreed with said appellees that the number of sheep in said mortgages of appellees should be kept good out of the increase of said sheep, and that the wool was released by said agreement to said company, and that the consideration thereof was an alleged forbearance to foreclose said mortgages of said appellees." Messrs. A. B. Browne, E. E. Ellenwood, and A. T. Britton, for appellants: There can be no substitution or exchange of property by the parties to the mortgage, that will bind third parties, unless the mortgagee takes actual possession of the substituted articles before the rights of third parties intervene. Where an equitable mortgage is claimed as the result of an agreement, there must be, at the time such agreement is made, such identification of the property that the equitable mortgagee may see with a reasonable degree of certainty what property it is that is subject to his lien. Payne v. Wilson, 74 N. Y. 352; Newell v. Warner, 44 Barb. 258. To be held in equity, the description of the property mortgaged must be certain. Hughes v. Menefee, 29 Mo. App. 192; MorA chattel mortgage must contain terms' rill v. Noyes, 56 Me. 458, 96 Am. Dec. 486. 1898. NORTHWESTERN NATIONAL BANK V. FREEMAN. *After stating the case, Mr. Justice Mc-[627] The claim of the mortgage is to be enforced on the identical property included in the Kenna delivered the opinion of the court: mortgage. Kelly v. Reid, 57 Miss. 89. The contest is for priority. The territorial supreme court awarded it to the mort Upon breach of the conditions the mortgages of the appellees. The appellants *con-[628] He gagee may take possession of the property, and henceforth treat it as his own. may sell it or give it away, squander or destroy it. Heyland v. Badger, 35 Cal. 404; Wright v. Ross, 36 Cal. 414; Pom. Eq. Jur. § 1229; Parshall v. Eggert, 54 N. Y. 18; Blake v. Corbett, 120 N. Y. 327; Tompkins v. Batic, 11 Neb. 147, 38 Am. Rep. 361. Messrs. Fred Herrington and Cass E. Herrington, for appellees: A mortgage of a certain number out of a larger number is not void. Oxsheer v. Watt, 91 Tex. 124; Leighton v. Stuart, 19 Neb. 546; Frost v. Citizens' Nat. Bank, 68 Wis. 234; Gurley v. Davis, 39 Ark. 394. Such mortgage is good as to parties having notice. Clapp v. Trowbridge, 74 Iowa, 550. The rights of appellants are to be deter mined by the circumstances existing at the time their rights were acquired. Cole v. Green, 77 Iowa, 307; Interstate Galloway Cattle Co. v. McLain, 42 Kan. 680. Appellee bank's mortgage covered the in crease. Pyeatt v. Powell, 10 U. S. App. 200, 1 Fed. Rep. 551, 2 C. C. A. 367; Arkansas Valley Land & Cattle Co. v. Mann, 130 U. S. 78, 32 L. ed. 857; Fowler v. Merrill, 11 How. 375, 13 L. ed. 736; Cahoon v. Miers, Funk v. Paul, 64 Wis. 35, 54 Am. Rep. 576. Where two mortgages are of record, one of which correctly describes the property and refers to the other as being upon the same property, the description of such other mortgage is rendered definite, and the record Newis sufficient to impart notice to the world. Tompson v. Anderson, 94 Iowa, 554; man v. Tymeson, 13 Wis. 172, 80 Am. Dec. 67 Md. 573; Meyer v. Cook, 85 Ala. 417; 735. Means of knowledge, with the duty of using them, are in equity equivalent to knowledge itself. Cordova v. Hood, 17 Wall. 1, 21 L. ed. 587. The holder of a mortgage "in terms" made subject to another mortgage cannot defeat it upon technical grounds. Eaton v. Tuson, 145 Mass. 218; Flory v. Comstock, 61 Mich. 522; Gammon v. Bull, 86 Iowa, 754; Cassidy v. Harrelson, 1 Colo. App. 458; Clapp v. Halliday, 48 Ark. 258; Hoagland v. Shampanore, 37 N. J. Eq. 588. A written agreement, although not signed by the parties, will, if orally assented to by them, constitute the agreement between them. Dutch v. Mead, 4 Jones & S. 427; Farmer v. Gregory, 78 Ky. 475; Bacon v. Daniels, 37 Ohio St. 279. A party is presumed to have actual notice Finley v. Simpson, 22 N. J. L. 311, 53 Am. that the mortgages respectively covered The rule is laid down that, as to third But such a mortgage is valid against those The mortgage of January 4, 1893, executed out of increase.' There was consideration The court further finds that on August 30, 1893, Fulton paid to the Arizona Lumber & Timber Company $3,000 out of the proceeds cured from the company an advance of $500, of the wool from the mortgaged sheep, se"executed his negotiable promissory note and for that and the amount due on his note payable in ninety days, securing the same In this mortgage there was no recital or refby a chattel mortgage for the sum of $6,000." erence to the existence of any other mortOn the 29th of September, 1893, and gage. prior to this *maturity, the "appellant, the [629] Arizona Lumber & Timber Company, representing that said mortgage was a first lien, sold, indorsed, and delivered the note and mortgage to the appellant the Northwestern gage that are in controversy and which are National Bank." It is this note and mortclaimed as prior liens to the mortgages of cent purchaser for value. By this is meant appellees. The bank is found to be an innothat it had no actual notice of the prior Certainly not by the record of the mortgages mortgages. Did the law impute notice to it? 'mortgage of January 4, 1893, to the Arizona to appellees. Did it by the record of the 311 between all who had interests, and was expressed in the mortgage of January 4, 1893. There is nothing in the record to show a substitution except by the increase, and therefore we are not called upon to pass upon some of the interesting questions argued by appellants. Nor are we embarrassed by con 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 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, so far as they affect the transaction in which notice of the deed is acquired." [Hamilton v. Royse] 2 Sch. & Lef. 315, cited and approved 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-siderations of the increase being in or having tion suggested by the records would have disclosed. 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 Northwestern National Bank, and covered the same sheep, and hence, under the rule announced, the bank was charged with notice of it and of its recitals. It was not given up or satisfied. It was preserved as an independent lien. 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 National Bank did not. *The objections to testimony assigned re[631] error in the fourth and seventh assigments of error were not well taken. The testimony showed the transactions and the rentes 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. 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. 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 is a contention as to whether these are cov-Submitted ered by the lien of the mortgages. Under the rule that the incident follows the principal, a mortgage of domestic animals covers the increase of such animals, 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. This court has no appellate jurisdiction of capital cases from the United States court for the northern district of the Indian terri tory. Such appellate jurisdiction is vested exclusively in the United States court of ap peals in the Indian territory. [Nos. 249, 250.] April 25, 1898. Decided Octo ber 24, 1898. 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 dismissed. Statement by Mr. Justice Shiras: Cyrus A. Brown, plaintiff in error in case 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 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 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. of the court: 1889 (Sup. R. S. vol. 1, 2d ed. 670), there was established a United States court for 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. 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 ment or decree of the court, where the value one hundred dollars or more. The final judg 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. 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 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. 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 February. 1998, service of the citation issued out of this court was acknowledged. A transcript of the entire record was filed in the office of the clerk of the Supreme Court of the United States on March 1, 1898. The government has filed its motion to dismiss the writ of error in said case for the reason that 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 have such jurisdiction and powers in said Indian territory, and such general superintending control over the courts thereof, as is conferred upon the supreme court of Arkansas over the courts thereof by the laws of said state, as provided by chapter forty of Mansfield's Digest of the Laws of Arkansas, and the provisions of said chapter, so far as |
