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Opinion of the Court.

show such diligence should be disclosed and that an affidavit merely alleging inability was one of a conclusion of law and not of facts. McDonald v. Cooper, 32 Fed. Rep. 745; Carleton v. Carleton, 85 N. Y. 313; McCracken v. Flanagan, 127 N. Y.493; Ricketson v. Richardson, 26 California, 149; Braly v. Seaman, 30 California, 610; Kahn v. Matthai, 115 California, 689; Little v. Chambers, 27 Iowa, 522; Thompson v. Shiawassee Circuit Judge, 54 Michigan, 236; Alderson v. Marshall, 7 Montana, 288. Nor is this inability shown by the mere fact that a summons issued to the sheriff of the county in wbich the land is situated is returned not served, for in cases of this kind by section 3934 a summons can be issued to and served in any county of the Territory.

But while the affidavit for publication may have been insufficient, we are unable to concur with the Supreme Court of Oklahoma in its conclusions. A publication of notice was in fact made, and a publication based upon an affidavit which, however defective it may have been, was intended to be in compliance with the statute. It was approved by the court, which upon it rendered a decree of foreclosure, which was executed by the proper officers in the proper way. By virtue of the proceedings the mortgagee was put into possession—a possession which he transferred to the appellant Harding. Under those circumstances what right has the appellee, a grantee from the mortgagor? The foreclosure was a proceeding in equity, although its various steps were prescribed by statute. Equitable principles must control the measure of relief. Even if the publication had been founded upon an affidavit perfect in form and the decree and all proceedings had been in strict conformity to the statute, yet by section 3955 the defendant would be let in to defend upon compliance with certain conditions.

Assuming that that section is not fully applicable because of the defect in the affidavit, yet the appellee comes into a court of equity seeking relief against the foreclosure of a mortgage. In such a case there are almost always certain conditions of relief. If the mortgage be valid the rights of the mortgagee and those claiming under him are to be protected. Generally such rights are protected by requiring payment of the mortgage debt

Opinion of the Court.

and granting a right of redemption. It is true that this right of redemption is a favored right. Russell v. Southard, 12 How. 139; Villa v. Rodriguez, 12 Wall. 323; Bigler v. Waller, 14 Wall. 297; Noyes v. Hall, 97 U. S. 34; Shillaber v. Robinson, 97 U. S. 68. But it is only a right of redemption which in this case and under the facts disclosed the appellee is entitled to. She does not pretend in her affidavit that the mortgage was invalid, or that it had been paid. She claims by a deed subsequent to the mortgage, and simply insists that she has not had her day in court, and therefore her rights, which, so far as appears, are only the rights of redemption, have not been cut off. Harding, as the grantee of the purchaser at the foreclosure sale, stands in the shoes of the mortgagee. Bryan v. Brasius, 162 U. S. 415. As shown by the opinion in that case and cases cited therein a mortgagee who enters into possession, not forcibly but peacefully and under the authority of a foreclosure proceeding, cannot be dispossessed by the mortgagor, or one claiming under him, so long as the mortgage remains unpaid.

Under section 4498 the appellant Harding has all the rights of an occupying claimant, for he was “in quiet possession claiming title

and holding

under a sale and conveyance made

in pursuance of

a decree in chancery where lands

have been directed to be sold and the purchasers thereof have obtained title to and possession of the same without any fraud or collusion.” Of course, this section applies to proceedings which are defective, for if not defective, by section 3955 a purchaser in good faith has title and cannot be evicted upon any terms.

The decree of the Supreme Court of Oklahoma will be reversed and the case remanded to that court, with instructions to set aside the order of the trial court, and to direct the entry of one which, without disturbing the possession of Harding, will give to the appellee the right to appear, plead and make such defense as under the facts of the case and the principles of equity she is entitled to.

Decree reversed.

.

.

Syllabus.

BIRD Y. UNITED STATES.

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE

DISTRICT OF ALASKA.

No. 306. Argued October 14, 1902.-Decided November 17, 1902.

Bird was twice tried and found guilty of the crime of murder and sen

tenced to death by the District Court of the United States for the District of Alaska; while an al from the first trial was pending in this court, which resulted in reversal, 180 U. S. 356, Congress passed the act of March 31, 1899, to “ define and punish crimes in the District of Alaska and to provide a code of criminal procedure for said district,” which went into effect July 1, 1899; on June 6, 1900, Congress passed another act for Alaska “ making further provision for a civil government in Alaska and for other purposes.” On the second trial plaintiff in error contended that these acts deprived the trial court of jurisdiction and that the act of March 17, 1884, establishing the District Court for Alaska was entirely repealed and superseded by the act of June 6, 1900, and the District Court for Alaska to which the indictment was returned was thereby abolished; motions to strike from the docket and in arrest of judgment were denied: (1) Held, that this was not error as the acts of March 3, 1899, and June 6,

1900, together constituted a part of the scheme for the government of Alaska, and it is manifest from the provision in section 219 of the act of March 3, 1899, that "nothing therein contained shall apply to or affect in any way any proceeding or indictment now found or pending, or that may be found for any offence committed before the passage of this act." That Congress did not intend by

the act of June 6, 1900, to affect the prosecution of prior offences. The tribunal provided for by the act of June 6, 1900, whether newly created

or an existing one continued, has jurisdiction of all criminal cases

embraced by the provision of the act of March 3, 1899. There is a presumption against a construction which would render a stat

ute ineffective or inefficient, or which would cause grave public in

jury or even inconvenience. (2) Where a female witness for the prosecution is designated on the trial

indictment and the list of witnesses given to the defendant on the trial by her maiden name, which was the name by which she was known at the time, although she had been married and divorceel and had subsequently borne the name of another man with whom she lived, the trial court properly overruled the objections of the plaintiff in error to the testimony on the ground that the name so designated was not her name.

Counsel for Parties.

The purpose of section 1033 of the Revised Statutes of the United States

requiring that in capital cases the list of witnesses be given to the defendant at least two da before the trial, is to oint out the persons who may testify against him, and this is best accomplished by the name the witness bears at the time and not some name that

the witness may have had at a prior time. (3) It was not error to charge a jury, “But in determining this matter

under the evidence before you, you must consider the situation of the parties at the time and all the surrounding circumstances, to. gether with the testimony of the witness for the prosecution as well as the evidence of the defendant," on the ground that it in effect declared that even if the testimony of the witnesses for the Government were untrue, it was to be considered in delivering the verdict and because all the defendant's evidence (except his own) was withdrawn from the jury on the issue of self-defence, as it appears that the jury were also instructed that it was their duty “ to consider the whole evidence and render a verdict in accord

ance with the facts proved upon the trial.” (4) There was no error in the following instruction: “Evidence has been

offered of the escape of the defendant, or attempted escape, after arrest on the charge on which the defendant is now being tried. This evidence is admitted on the theory that the defendant is in fear of the consequences of his crime and is attempting to escape therefrom; in other words, that guilt may be inferred from the fact of escape from custody. The court instructs you that the inference that may be drawn from an escape is strong or slight according to the facts surrounding the party at the time. If a party is caught in the act of crime and speedily makes an attempt for liberty under desperate circumstances, the inference of guilt would be strong, but if the attempt was made after many months of confinement and escape comparatively without danger, then the inference of guilt to be drawn from an escape is slight; but whether the inference of guilt is strong or slight depends upon the conditions and circumstances surrounding the accused person at the

time.”

(5) The trial court rightly refused, at the defendant's request, to give

the jury any instructions defining principal and accessory, or to submit to the jury to determine whether certain other persons were accomplices, as there were no facts in the case to justify it and the defendant himself testified that he had acted in selfdefence.

The case is stated in the opinion of the court.

Mr. L. T. Michener for plaintiff in error. Mr. W. W. Dudley and Messrs. Malony & Cobb were with him on the brief.

Opinion of the Court.

Mr. Assistant Attorney General Beck and Mr. Charles H. Robb for defendants in error.

MR. JUSTICE MCKENNA delivered the opinion of the court.

Homer Bird was found guilty of the crime of murder and was sentenced to death. On appeal to this court the judgment and sentence were reversed and the case remanded for a new trial. 180 U. S. 356.

A new trial was had resulting again in the conviction of Bird for murder, and a sentence of death by hanging was pronounced against him. To this judgment and sentence this writ of error is directed.

After the first trial and while the case was pending in this court, that is, on March 3, 1899, Congress passed a criminal code and code of civil procedure for Alaska, entitled “ An act to define and punish crimes in the District of Alaska and to provide a code of criminal procedure for said district.” It went into effect July 1, 1899.

On June 6, 1900, Congress passed another act for Alaska, entitled “ An act making further provision for a civil government for Alaska, and for other purposes.” 31 Stat. 321.

Plaintiff in error, contending that these acts deprived the court of jurisdiction, when the case was called for trial, moved the court to strike the cause from the docket and order bim discharged: (1) because the court had no jurisdiction of the crime charged ; (2) because the court had no jurisdiction of the

The motion was denied. It was renewed again in arrest of judgment, and the grounds of it specifically alleged as follows :

“I. Because there has never been any plea entered in this court by the defendant, the only plea ever made by him being in the District Court for Alaska, established by the act of Congress of May 17, 1884, which was abolished by the act of Congress of June 6, 1900.

“II. Because the court has no jurisdiction of this cause, the indictment herein having been returned into the District Court for Alaska, established by the act of Congress of May 17, 1884,

case.

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