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Opinion of the Court.

Mitchell v. Clark, 110 U. S. 633, 645; Boyd v. Thayer, 143 U. S. 135, 180."

So, if the highest court of the State, by its final judgment, sustains the validity of a state enactment drawn in question there as repugnant to the Constitution, treaties or laws of the United States, or denies a right, privilege or immunity specially set up or claimed in that court for the first time under the Constitution or any treaty, statute or authority exercised under the United States, this court could review that judgment, although no Federal question was distinctly raised or insisted upon in the trial court.

In the present case the statute was not drawn in question in the trial court as invalid under any clause of the Constitution except the one relating to commerce. It was not even asserted there to be invalid under “various other provisions” of that instrument. The statements in the motion for nonsuit, that “the cause of action alleged in such action has not been proved,” and that "no cause of action bas been proved in either of the actions consolidated in the action on trial,” were too vague and general to indicate that the defendant claimed anything under that Amendment. The record before us is consistent with the idea that the defendant did not claim, in the trial court, in any form, generally or specially, that the statute deprived it of its property without due process of law or denied to it the equal protection of the laws.

We therefore cannot hold that the Court of Appeals, by its final judgment, sustained the validity under the Constitution of the United States of the statute drawn in question by the defendant or that it denied any right or immunity now claimed by it under the Fourteenth Amendment; for that court simply declined to consider any Federal question except that made under the commerce clause of the Federal Constitution, assigning as the reason therefor that no point was made at the trial in respect of any other clause of that instrument. In so holding, the court followed the settled rule of practice in that State. On that practice alone was based its refusal to consider a Federal question not brought to the attention of the trial court. Vose v. Cockcroft, 44 N. Y. 415; Delaney v. Brett, 51 N. Y. 78.

Opinion of the Court.

Now, where a party-drawing in question in this court a state enactment as invalid under the Constitution of the United States, or asserting that the final judgment of the highest court of a State denied to him a right or immunity under the Constitution of the United States—did not raise such question or specially set up or claim such right or immunity in the trial court, this court cannot review such final judgment and hold that the state enactment was unconstitutional or that the right or immunity so claimed had been denied by the highest court of the State, if that court did nothing more than decline to pass upon the Federal question because not raised in the trial court as required by the state practice. Spies v. Illinois, 123 U. S. 131, 181; Miller v. Texas, 153 U. S. 535, 538; Morrison v. Watson, 15+ U. S. 111, 115. Of course, if upon exainining the record this court had found that a Federal question was properly raised, or that a Federal right or immunity was specially claimed, in the trial court, then our jurisdiction would not have been defeated by the mere failure of the highest court of the State to dispose of the question so raised or to pass upon the right or immunity so claimed.

It results from what has been said that no Federal question is sufficiently presented by the record for our determination ; consequently, the writ of error must be Dismissed for want of jurisdiction in this court. It is 80


MR. JUSTICE Gray did not hear the argument or take part in the decision of this case.

Opinion of the Court.



No. 99. Argued January 14, 15, 1902.—Decided April 7, 1902.

The property involved in this suit is improved real estate in the city of

Washington; and the controlling question presented is, whether the sale of it under a deed of trust stands in the way of its redemption by Mrs.

Hitz upon her paying the debt secured by the deed of trust. As between the parties to the original cause the title to the real estate in

question was bound for the filing of the cross-bill by Mrs. Hitz. The deeds which Mrs. Hitz sought to have set aside are valid and enforce

able instruments. The sale by Tyler as trustee conferred no title as against Mrs. Hitz. Mrs. Hitz is entitled in this suit to redeen the property by paying such sum

as may be due on account of the debt to secure which the deed to Tyler was made.

The case is stated in the opinion of the court.

Mr. A. S. Worthington and Mr. Wayne Mc Veagh for appellant. Mr. J. S. Flannery was on their brief.

Mr. Walter D. Davidge and Mr. J. J. Darlington for appellees.

MR. JUSTICE Harlan delivered the opinion of the court.

The property involved in this suit is certain improved real estate on the northeast corner of Ninth and G streets in the city of Washington, of which the appellant, who was the plaintiff below, asserts ownership subject to the lien created by a deed of trust to which reference will be presently made; but of which property the heirs at law and devisees of the late William P. Jenks also assert ownership in virtue of a conveyance to him by the purchaser at a sale bad under that deed by the trustee therein named while he held the property as receiversuch purchase having been in fact for the benefit of Jenks in whose favor the deed of trust was executed.

Opinion of the Court.

This land had been inherited by Mrs. Hitz from her father after her marriage to John Hitz in 1856. There were several children of that marriage, and, as stated by the Court of Appeals, the husband became entitled to an inchoate tenancy by the curtesy in the wife's estate which remained unaffected by the married woman's act of 1869.

The controlling question presented on this appeal is whether the sale under the deed of trust stands in the way of the redemption of the property by Mrs. Hitz upon her paying the debt secured by the above deed of trust.

The facts necessary to be stated in order to bring out clearly the views of the respective parties touching that question are as follows:

By a deed of trust dated January 26, 1876, John Hitz and his wife Jane C. Hitz conveyed this real estate to R. B. Donaldson and Charles E. Prentiss, trustees, to secure the payment of two promissory notes of $10,000 each executed January 5, 1876, by William R. Chipley to E. P. Halstead and by the latter endorsed to the German-American Savings Bank.

Subsequently the above notes passed to and became the property of the German-American National Bank, which succeeded the German-American Savings Bank.

On the 16th day of June, 1877 (the deed to Donaldson and Prentiss having been released of record) Hitz and wife by deed conveyed the property to Sarah L. Crane, who on June 18, 1877, conveyed to Richard W. Tyler as trustee, to secure the payment of a promissory note for $20,000 executed by the grantor and made payable to John Hitz or order three years after date, with interest at the rate of eight per cent per annum until paid; which note was endorsed by the payee to William P. Jenks. Sarah L. Crane had no interest in the transaction with Jenksthe real consideration for the note being a loan of money by Jenks to the German-American National Bank, of which John Hitz was President and Charles E. Prentiss, a brother of Sarah L. Crane, was Cashier. The title was put in her name in order that she might execute the above note to Jenks and make it deed of trust to secure its payment, which should be a first lien on the property.

Opinion of the Court.

The deed to Tyler as trustee authorized bim upon default in the payment of the note or any quarterly instalment of interest thereon at the rate aforesaid, or of any sums advanced for taxes and insurance when demanded, or of any cost, charge or commission, to sell the land and premises, or as much thereof as might be necessary, at public auction to the highest bidder, upon such terms and at such time and place as the trustee deemed best for the interest of the parties concerned.

In October, 1878, the German-American National Bank failed, and by appointment of the Comptroller of the Currency, Benjamin U. Keyser became its receiver. The latter (having first procured from Sarah L. Crane a conveyance of such interest as she had after satisfying the deed of trust to Tyler) obtained possession of the property from Hitz, and proceeded, in his capacity as receiver of the bank, to collect the rents.

Default having occurred in the payment of taxes and interest on the Jenks note, Tyler as trustee gave notice by publication in a newspaper that he would sell the property at publio auction, on the 20th day of January, 1879.

Thereupon, on the 10th day of January, 1879, Keyser as receiver commenced his suit in equity in the Supreme Court of the District of Columbia against John Hitz, Jane C. Hitz, Sarah L. Crane, William P. Jenks, Richard W. Tyler, E. P. Halstead, R. P. Donaldson, Charles E. Prentiss and William R. Chipley. Part of the relief asked was that pending the cause the defendants Jenks and Tyler and each of them be restrained from advertising and selling the property in question or in any manner interfering with it.

On the 21st of February, 1879, an order was entered restraining the sale by Tyler.

All of the defendants filed answers-Jenks and Tyler resisting the relief asked. Sarah L. Crane by cross-bill asked that the conveyance from her to Keyser be vacated. Mrs. Hitz by cross-bill claimed the property as hers, and prayed, upon various grounds, for the cancellation of the deed to Sarah L. Crane, as well as the deed of the latter to Tyler, and for an accounting in respect of rents and profits. She also charged that there had been a fraudulent alteration of the deed from her to

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