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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 there proved 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 mortgayee 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 Northwertern Naof August the 30th, the one sold to the North- tional Bank did not. western National Bank, and covered the * The objections to testimony assigned - (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 testimony of it and of its recitals. It was not given showed the transactions and the rematuros 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 Cullg, PIA it. It would have been found if looked for, and would have notified the bank of the transactions which conducted to it and caused

to be made subject to the mortgages of the
(630]appellees. We therefore think the *territo- (See S. 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 States
was it error to subordinate the attachment

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

dian territorycapital 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 Indian 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,

1891, respecting the jurisdiction of the Sudate of the mortgages to appellees; that the

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

2. This court has no appellate jurisdiction of and the lambs had died, been consumed, sold,

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

for the northern district of the Indian territo whether there were or were not other

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.] a contention as whether these 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 animals

the Indian Territory to review judgments mals, though it is silent as to such increase. by which Cyrus A. Brown and George Čurley, 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 ju. brood of all tame and domestic animals be. risdiction of said causes. Both cases dis. longs 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 case cited.

No. 249, was indicted in the United States



the increase of such ani: INTERROR to the United States Court in

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

had no jurisdiction over capital crimes, Con- | WILLIAM NAEGLIN, Annie Naeglin, Adgress 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 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.


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



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].


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.

(See S. C. Reporter's ed. 638-641.) Appeal from supreme court of territory-re lease by mother of illegitimate childrenwhen will not cut off inheritance.

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

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It has been held by this court that the court established in the Indian territory, a or circuit of United t district our of the United States, is not States. Re Mills, 135 U. S. 268 [34: 110].

APPEAL from the Supreme Court of the Territory of New Mexico reversing decree of the District Court of the County of We accept the contention of the Solicitor Mora, Fourth Judicial District in said TerGeneral on behalf of the government, that ritory, in favor of the defendants, and rethe court of appeals in the Indian territory, manding 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.

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

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

Statement by Mr. Justice Brewer: On March 29, 1886, the appellees, Doloritas 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 master, who reported findings of fact and conclusions of law in favor of the plaintiffs. Upon a hearing in the district court a decree 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 defendants appealed to this court.


At the time of entering the decree, and also | Foundry & Machine Co. 151 U. S. 47 [38: 1289]of overruling a *petition for rehearing, no 229].

statement of facts was prepared by the su. The order signed in vacation by the several preme court, and no other determination of members of the supreme court cannot be conthe facts than such as appears from the di- sidered an order of the court. Assuming, rection to enter a decree in conformity with however, for the purposes of this case, that, the findings and recommendations of the in view of the general language in the opinmaster. But after the supreme court had ion of the court, we may take the findings of adjourned, an application was made to have the master as its statement of facts, we obthe findings of fact made by the master inserve that no doubtful question of law is precorporated into the record as a statement sented for our determination. The master and finding of facts by that court, for the finds that Metzger was the father of the appurpose of an appeal, and upon that applica- pellees, and that he owned certain property. tion the following order was entered: These are questions of fact, resting upon tes.

timony, concluded, so far as this court is And now the foregoing statement and concerned, by the findings, and into which it finding as to the facts proven and estab- is not our privilege to enter. lished by the evidence in each of said causes While under the common law illegitimate are ordered to be incorporated in the record children did not inherit from their father, of said supreme court as part thereof as fully the statutes of New Mexico introduced a new as we may be thereunto empowered, the July rule of inheritance (Comp. Laws New Mexterm of the supreme court having been ad- ico, 1884, § 1435, p. 680): “Natural chil. journed on the 26th day of September, A. D. dren, in the absence of legitimate, are heirs 1896, and this order made and signed by each to their father's estate, in preference to the of the judges while in his district respective ascendants, and are direct heirs to the mothly.

Thomas Smith, Chief Justice. er if she die intestate.” In other words,

Needham C. Collier, Associate under this statute, *there being no legiti-(641) Justice, Supreme Court of New Mexico. mate children, illegitimate children inherit.

Signed at Silver City, in the third judicial It appears that on March 19, 1875, and district.

while Metzger was living, the mother of these Gideon D. Bantz, Associate Jus plaintiffs, then minors, in her own right and tice of the Supreme Court of New Mexico and for the minors, receipted and relinquished Presiding Judge of the Third Judicial Dis- all claims against him. Without stopping trict Court.

to consider what was meant by that release, Signed at Santa Fe, N. M., in the first ju- and giving to it all the scope which its landicial district.

guage may suggest, we remark that a natural N. B. Laughlin, Associate Jus- guardian has no power to release the claim tice of the Supreme Court and Judge of the of a ward to an inheritance without the sancFirst Judicial Distriot.

tion of some tribunal. Woerner's American

Law of Guardianship, p. 185, and following.
It appears from the bill, answer, and find. The decree is affirmed.
ings that Frederick Metzger, though an un-
married man, was the father of several
children by different women, and this
suit is one hetween the several illegiti- LEWIS PIERCE et al., Piffs. in Err.,
mate children to determine their
spective rights to share in his estate. The

counsel for appellants says in his brief:
“The bill of complaint and the testimony

(See s. C. Reporter's ed. 641-650.) present for determination of the court two [640]questions: First, What estate *and property Federal questionwhen state judgment will

did Metzger own at the time of his death? not be revicuedFederal right may be and, second, Who is entitled to that estate ?" waived-question of waiver is not Federal

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

1. The question whether a state statute im

pairs the obligation of a contract is a Federal (140) "Mr. Justice Brewer delivered the opin.

question ; but the question whether the deion of the court:

fense of estoppel by laches and acquiescence No question is made in this record as to the

is established is not a Federal question, admission or exclusion of testimony. There 2. A judgment of the state court, based on two being no jury the case comes here on appeal, distinct grounds, each of which is sufficient and the only question we can consider is to sustain the judgment, and one of which whether the findings of fact sustain the de- involves no Federal question, cannot be recree. 18 U. S. Stat. 27; Stringfellow v. Cain,

viewed on writ of error by this court. 99 U. S. 610 [25:421); Cannon v. Pratt, 99 3. A person may, by his acts or omission to act, U. S. 619 [25:446); Neslin v. Wells, 104 U.

waive a right which he might otherwise bave S. 428 [26:802); Hecht v. Boughton, 105 U.

under the Constitution of the United States.

4. S. 235, 236 ( 26:1018]; Gray v. Howe, 108 U.

Whether or not a person has lost a right

under the Federal Constitution by his action S. 12 [27:634); Eilers v. Boatman, 111 U. S.

or failure to act is not a Federal question 356 [28:454] ; Zeckendorf v. Johnson, 123 U.

which will sustain a writ of error to a state 8. 017 [31:277); Sturr v. Beck, 133 U. S. 541

court. [33:761]; Mammoth Min. Co. v. Salt Lake

[No. 12.)

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