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Opinion of the Court.

imparted by the record in the said suit; and that at the time when Sims bought the property and paid the purchase money therefor he did not know and had no notice that M. W. Kales, from whom he obtained the assignment of the said certificate of sale, was the same person who was the administrator of the estate of Jonathan M. Bryan, deceased, except such notice as may have been imparted by the record aforesaid.

The present action, which was an action of ejectment to recover possession of the said property, was brought July 11, 1887, by T. J. Bryan, the grantee, as aforesaid, of Vina Bryan, against George T. Brasius and others, in the district court of the Second Judicial District of the Territory of Arizona in and for the county of Maricopa. At the trial a jury was waived, and the case was tried by the court. On December 2, 1890, a judgment was entered in favor of the defendant, and the plaintiff thereupon appealed to the Supreme Court of the Territory of Arizona, where the judgment of the said district court was affirmed. The plaintiff then appealed to this court.

Mr. William A. McKenney, Mr. Webster Street and Mr. B. Goodrich for appellant.

Mr. A. C. Baker, Mr. A. H. Garland and Mr. R. C. Garland for appellees.

MR. JUSTICE SHiras, after stating the case, delivered the opinion of the court.

This case differs from the case of Bryan v. Kales just decided, in the particular that the mortgagee, Kales, is not himself the defendant, but the defendants in possession are his alienees. The question thus presented is precisely the one that was ruled in the case of Brobst v. Brock, 10 Wall. 519, where this court held that a mortgagor of land cannot recover in ejectment against the mortgagee in possession, after breach of the condition, or against persons holding possession under the mortgagee; and also held that an irregular judicial sale made at the suit of a mortgagee, even though no bar to the equity of redemption, passes to the purchaser at such sale all the rights

Opinion of the Court.

of the mortgagee as such. Gilbert v. Cooley, Walker's Chancery, 494, and Jackson v. Bowen and Neff, 7 Cowen, 13.

So in Jackson v. Minkler, 10 Johnson, 479, it was held that the assignee of a mortgage, in possession of the premises, is protected by the mortgage, though no foreclosure of it was shown, against an action of ejectment by a mortgagor.

The judgment of the court below, Bryan v. Brasius, 31 Pac. Rep. 519, was placed on this ground, and it is accordingly







No. 199. Submitted December 19, 1895. – Decided April 13, 1896.

Bryan v. Brasius, ante 415, followed.

The case is stated in the opinion.

Mr. William A. McKenney, Mr. Webster Street and Mr. B. Goodrich for appellant.

Mr. A. C. Baker, Mr. A. H. Garland and Mr. R. C. Garland for appellees.

MR. JUSTICE SHiras delivered the opinion of the court.

This was an action of ejectment brought by T. J. Bryan in the district court of the Second Judicial District of the Territory of Arizona, against D. H. Pinney, Mary E. Pinney, M. H. Sherman, George H. Mitchell, George W. Maull and the Bank of Napa, to recover possession of block 98 in the town of Phoenix, county of Maricopa. The facts of this case, so far as they present questions for our consideration, are similar to those of the case of Bryan v. Brasius, just decided, and for the reasons there given, and on the authorities there cited, the judgment of the Supreme Court of Arizona is


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On the trial of a person indicted for a violation of the provisions of Rev.

Stat. § 3893, touching the mailing of obscene, lewd or lascivious books, pamphlets, pictures, etc., it is competent for a detective officer of the Post Office Department, as a witness, to testify that correspondence was carried on with the accused by him through the mails for the sole purpose of obtaining evidence from him upon which to base the prosecu

tion. The mailing of a private sealed letter containing obscene matter in an

envelope on which nothing appears but the name and address is an offence

within that statute. As the inspector testified that the signature was fictitious, and that the letter

had been written in an assumed name, the opening by him of the sealed answer bearing the fictitious address was not an offence against that provision of the statute which forbids a person from opening any letter or

sealed matter of the first class not addressed to himself. When the record does not contain the instructions given by the trial court,

it is to be presumed that they covered defendant's requests, so far as those requests stated the laws correctly.

This case is here upon a writ of error sued out of the District Court of the United States for the Southern District of California, wherein the plaintiff in error was indicted, tried, convicted and sentenced for violation of Rev. Stat. S 3893, as amended by the act of Congress of September 26, 1888, c. 1093, § 2, 25 Stat. 496. The indictment contained two counts, each of which alleged that in the year 1893, at the city of Los Angeles, county of Los Angeles, the plaintiff in error “did knowingly, wilfully and unlawfully deposit and cause to be deposited in the United States post office at the said city of Los Angeles, county and district aforesaid, for delivery a certain obscene, lewd and lascivious letter addressed to Mrs. Susan Budlong, box 661, Los Angeles, Cal. ;'” and that the said letter was then and there unmailable matter by reason of the indecent character of its contents. The two counts

Statement of the Case.

differed merely in that they described two different letters, alleged to have been dated respectively November 1 and November 3, 1893, and to have been respectively deposited in the said post office November 2 and November 3, 1893.

Section 3893, Revised Statutes, as amended by the act of September 26, 1888, is as follows:

“Sec. 3893. Every obscene, lewd or lascivious book, pamphlet, picture, paper, letter, writing, print or other publication of an indecent character, and every article or thing designed or intended for the prevention of conception, or procuring of abortion, and every article or thing intended or adapted for any indecent or immoral use, and every written or printed card, circular, pamphlet, book, advertisement or notice of any kind giving information, directly or indirectly, where or how or of whom, or by what means any of the hereinbefore mentioned matters, articles or things may be obtained or made, whether sealed as first class matter or not, are hereby declared to be non-mailable matter, and shall not be conveyed in the mails from any post office, nor by any letter carrier; and any person who shall knowingly deposit, or cause to be deposited, for mailing or delivery anything declared by this section to be non-mailable matter, and any person who shall knowingly take the same, or cause the same to be taken from the mails for the purpose of circulating or disposing of, aiding in the circulation or disposition of the same, shall, for each and every offence, be fined upon conviction thereof not more than five thousand dollars, or imprisonment at hard labor not more than five years, or both, at the discretion of the court; and all offences committed under the section of which this is amendatory, prior to the approval of this act, may be prosecuted and punished under the same in the same manner and with the same effect as if this act had not been passed: Provided, That nothing in this act shall authorize any person to open any letter or sealed matter of the first class not addressed to himself.”

The defendant demurred to the indictment on the ground that the facts stated therein did not constitute an offence against the laws of the United States. The demurrer was overruled, and the defendant then pleaded not guilty.

Statement of the Case.

The evidence adduced at the trial tended to prove that one M. II. Flint, a United States post office inspector, having seen in the Los Angeles Herald a certain advertisement bearing the address, “Spero, box 60, this office," mailed to that address a letter referring to the subject of the advertisement, signed “Susan II. Budlong, P. O. box 661, Los Angeles, Cal.," and received in answer thereto, through the post office at Los Angeles, a letter signed “Spero," being the letter described in the first count of the indictment; that Flint then sent another letter, signed as above, and, having received an answer thereto signed “Spero," wrote a third time, and afterwards received out of the said post office a letter signed “A. D. A. 313 N. Broadway,” being the letter described in the second count of the indictment. All the letters so received by Flint were enclosed in plain sealed envelopes, neither of which bore any writing save the address. Evidence was also introduced tending to connect the defendant with the mailing of the letters.

The said letters of Flint, and the testimony concerning the same, were introduced against the objections of the defendant, and to the introduction thereof he duly excepted.

At the conclusion of the evidence for the government, the defendant moved the court to instruct the jury to acquit him on the ground that if any offence had been committed it had been done at the request of Flint, a government officer, and on the ground that the evidence was insufficient to connect the defendant with the alleged offence. The motion was denied by the court, to which ruling the defendant excepted. The defendant then put in testimony tending to prove his good character, and to countervail the government's evidence to the effect that the said letters were mailed by him.

At the close of all the testimony the defendant requested the court to give the jury certain instructions, which request was refused.

Other instructions were given instead, which do not appear in the record. To the court's refusal to give the instructions proposed by the defendant, and to the giving of other instructions, the defendant excepted.

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