Supreme Court of United States.
*183 Mr. W.H. Kornegay, with whom Mr. J. Howard Langley was on the brief, for plaintiffs in error.
Mr. Robert F. Blair for defendants in error.
MR. JUSTICE LAMAR, after making the foregoing statement, delivered the opinion of the court.
The Bank of Claremore levied an attachment upon cattle of Mayes, who had given several mortgages on the herd. The property did not sell for enough to pay all of the liens, and the various creditors united in an attack on the mortgage to Keys & Co., which, being the oldest in date would, unless defeated take all of the fund. This mortgage, however, was sustained by the Supreme Court of Oklahoma, and three of the contesting creditors brought their cases here. They were all argued together and were *184 submitted on the briefs and record in No. 263, in which there are 44 assignments of error. They need not, however, be separately considered, since the controlling question is whether the mortgage from Mayes to Keys & Co., duly recorded at Muskogee, on Oct. 31, 1901, lost its lien because it was not re-recorded in 1902 at Vinita, and was not transferred in 1903 to the indexes at Pryor Creek, under the acts of 1902 (32 Stat. 276) and 1903 (32 Stat. 843), successively creating new districts with recording offices at those two places.
Registration laws are of statutory origin, and the statute must in each case be examined to determine what instruments are to be recorded, where they are to be recorded, and the effect of a failure to record. Provision as to these matters was made by Congress when it declared that the registration laws of Arkansas should be of force in the Indian Territory, and that the clerk of the court should be ex officio recorder, with his office at Muskogee. In compliance with that law the mortgage from Mayes to Keys was duly recorded at Muskogee. Some months later Congress passed the act of May 27, 1902, 32 Stat. 276, c. 888, dividing the District, providing that the "clerk's office at Vinita shall be the Recorder's Office for the Northern District," in which Mayes' ranch was left. But as that statute did not require that recorded instruments should be re-recorded at Vinita, Keys & Co. were under no obligation to do what the law did not demand, but could rely on the fact that their mortgage had been duly registered at Muskogee in accordance with the law of force when it was given and when the cattle were in that district.
Nor is the case different under the act of February 19, 1903, 32 Stat. 842, c. 707. It created 25 recording offices, named Pryor Creek as the place for the office in the Fifth District, in which Mayes' ranch was located, made the clerk ex officio recorder, provided that he should receive *185 the usual fees for registering deeds and mortgages, but that all sums collected in excess of $1,800 should be paid over to a school fund. It then declared that "such instruments heretofore recorded with the clerk of any United States Court in Indian Territory shall not be required to be again recorded under this provision, but shall be transferred to the indexes without further cost, and such records heretofore made shall be of full force and effect, the same as if made under this statute."
This provision of the act, following as it does the clause on the subject of fees, was evidently addressed to the clerk, who was thereby required, without cost, to transfer to the indexes in his office all papers previously recorded at Muskogee or Vinita relating to property in his district. There was no provision in the statute that the lien of a duly recorded mortgage should be lost against subsequent purchasers if not transferred to the index, and that silence cannot be construed into an affirmative declaration that such penalty should follow non-action by the mortgagee. Congress could have made it the duty of grantees to have their recorded documents again registered in the new district on pain of holding their rights subject to those which might be acquired by bona fide purchasers. But it made no such provision and we need not, therefore, inquire as to whether, had it done so, it would not have been necessary to give a reasonable time in which to have deeds and mortgages reindexed. The duty to transfer to the index was imposed on the clerk. No time was fixed within which it should be done. No penalty for its non-performance was imposed on the holder of any instrument previously and duly recorded. Purchasers were charged with notice of territorial limits and that Mayes' ranch had been in the old Northern District at a time the registration office was located at Muskogee, and that there they must look to see whether during that period sales had been made or mortgages given on property then *186 located within the District. This is in accord with the practice in the many instances in which counties have been subdivided. In none of which do we find that holders of mortgages on property falling in the new county lost their rights because of a failure to have them refiled, reindexed, or re-recorded at the new county seat.
This conclusion disposes of the case, because the other assignments of error relate to findings by the master to which the plaintiffs in error took no exception, but on which they were heard in the Supreme Court of Oklahoma, upon their application for a rehearing. In the rulings of that court, so far as they are subject to review on this writ, we find no error. As to those made when the mandate was returned to the District Court, it is sufficient to say that they are all foreclosed by the refusal to permit plaintiffs in error to amend. For even if the decision of a state court having jurisdiction of a case transferred from a Federal court were subject to review here on a non-Federal question, we would not interfere with the discretion of the trial judge in permitting or refusing an amendment except in case of manifest error. Cf. Spencer v. Lapsley, 20 How. 264. The judgment of the Supreme Court of Oklahoma is
Affirmed.
