possession of the land, and he did go into possession thereof; that afterwards Berryman abandoned the possession of the land and removed to his former home in Arkansas, and because of his not being within the jurisdiction of the Territory the Executors could not obtain service of process upon him nor sue him for specific performance of the contract of sale; that under the provisions of the contract the Executors had elected to declare said $9,173.32 forfeited by the failure and refusal of Berryman to carry out the contract; wherefore judgment was prayed against the Bank as trustee for the Executors with respect to the money in question. The Bank answered both the complaint and the cross-complaint, not denying the making of the contract between Mrs. Owens and Berryman, but denying that it was a party thereto or had any knowledge thereof or concern therewith, and asserting that the $9,173.32 was deposited with the Bank by Berryman in escrow, and subject only to the terms of a written memorandum or agreement signed by the Bank's cashier; and that because these terms had not been complied with by Mrs. Owens the responsibility of the Bank to her had been terminated, and therefore the Bank had paid the whole of the sum of $9,173.32 to Berryman, in compliance with his demand.

Upon the issues thus joined, the parties proceeded to trial before the judge of the District Court, without a jury, who rendered judgment in favor of the Bank, dismissing both the complaint and the cross-complaint.

Davisson and Mrs. Owens appealed to the Supreme Court of the Territory, which court reversed the judgment and remanded the record to the District Court with instructions to reinstate the action and proceed in accordance with the views expressed in the opinion. 15 N. Mex. 680. The grounds of decision, briefly, were that by the escrow agreement the Bank became agent for both parties, that the memorandum did not authorize it to pay over

the money to either party, and that in taking sides and making payment to Berryman it acted at its peril, and should be held responsible to Davisson and Mrs. Owens if upon a retrial they should sustain their right to the money as against Berryman.

The case was accordingly brought on again to trial before the District Court, without a jury, with the result that judgment was rendered against the Bank, in favor of Davisson for $5,000 and interest (the amount of his commissions), and in favor of Mrs. Owens and the other Executors of the Estate of Solon B. Owens, deceased, for the residue of the $9,173.32. Upon appeal by the Bank to the Supreme Court of the Territory this judgment was affirmed, 16 N. Mex. 689, and the Bank appealed to this court.

Under the act of April 7, 1874, c. 80, § 2, 18 Stat. 27, 28, our review is confined to determining the question whether the facts found by the court below sustain the judgment. And these facts are to be certified to us by the territorial Supreme Court, either by adopting the findings of the trial court, or by making separate findings of its own. Stringfellow v. Cain, 99 U. S. 610, 613, 614; O'Reilly v. Campbell, 116 U. S. 418, 421; Haws v. Victoria Copper Mining Co., 160 U. S. 303, 312; Gildersleeve v. New Mexico Mining Co., 161 U. S. 573, 577; Apache County v. Barth, 177 U. S. 538, 542, 547; Crowe v. Trickey, 204 U. S. 228, 235; Eagle Mining Co. v. Hamilton, 218 U. S. 513; Zeckendorf v. Steinfeld, 225 U. S. 445, 448; Rosaly v. Graham, 227 U. S. 584, 590.

The Supreme Court of the Territory, in affirming the judgment of the District Court resulting from the second trial, adopted the findings of that court, and supplemented them with certain findings of its own. From these findings, and from the admissions of the pleadings, the essential facts of the case may be summarized as follows:

On August 21, 1908, Mrs. Owens, residing at Roswell,

Chaves County, New Mexico, acting for herself and in behalf of others who were her co-executors of the estate of her deceased husband, Solon B. Owens, made an agreement in writing with C. C. Berryman of Arkadelphia, Arkansas, for the sale to him of certain lands, belonging to the Estate, situate in Chaves County, containing 360 acres, with the live stock and other personal property thereon. Davisson negotiated the sale as broker, and was entitled to a commission of $5,000 for his services if the sale should be finally consummated. The price agreed to be paid by the purchaser was $80,000, payable $10,000 in cash upon the making of the agreement (receipt whereof was acknowledged), $12,000 by assuming payment of a note for that amount held by an insurance company in Ohio and not yet due, and the balance to be secured by five notes of $11,600 each, falling due September 10, 1909, and in the four successive years thereafter. The property was to be clear of all encumbrance excepting the $12,000 mortgage. By the terms of the agreement the party of the first part, within ten days from its date (that is, on or before August 31), was to furnish the party of the second part, at Roswell, a complete abstract of title showing a good merchantable title in the party of the first part; the purchaser was to have until September 10th to examine the abstract, and if it showed a good title the transaction was to be closed at Roswell on or before September 10th, by the delivery of a warranty deed to the purchaser, he paying the consideration according to the terms of the agreement. There were the following additional clauses, which should be quoted in full:

"6th. If, upon examination of the said abstract of title, it is found that the title is not a good merchantable title, then any objections made to said title, shall be pointed out by the party of the second part, and then the party of the first part shall have ten days in which to cure said objections. Should it prove, upon examina

tion of said abstract, that the said title is not good, and same cannot be made good within such reasonable time, then it shall be the duty of the party of the first part to perfect said title at their expense, promptly in accordance with the requirements of the party of the second part, within the time stated, and if the party of the first part fails, neglects, or refuses to perfect said title in accordance with the requirements of the party of the second part, then the party of the second part shall have the right to perfect said title at the expense of the party of the first part who shall repay at Roswell, New Mexico, such sum of money as is expended by the party of the second part in perfecting said title, and if upon examination of said title it shall be shown that the title to the said property is not good and cannot be made good, then in such event this sale shall be annulled and the said $10,000.00 paid as purchase money hereinbefore provided for shall be returned by the party of the first part to the party of the second part.

"7th. Now, if the party of the first part complies with this contract and furnishes the abstract as provided for and the title is shown to be good or can be made good, and tenders to the party of the second part at Roswell, New Mexico, a warranty deed as provided for, and the party of the second part shall fail, neglect or refuse to comply with this contract, shall fail to accept deed and execute the said notes as provided for, then in such event, the party of the second part shall forfeit the said $10,000.00 paid, at the option of the party of the first part, or at his option and the party of the first part shall have a cause of action against the party of the second part, enforceable in the courts of Chaves County, New Mexico, for a specific performance of contract.

"8th. Should the party of the second part, upon examination of said abstract, find the title to the said property good and within the time stated, stand willing and

able to consummate this deal, to pay the balance of purchase money and execute the notes as above provided for and the party of the first part shall fail, neglect or refuse to execute said warranty deed in accordance with this contract, then in such event, the party of the second part shall have a cause of action against the party of the first part, enforceable in the courts of Chaves County, New Mexico, for a specific performance of contract.

"9th. Possession of said property shall be given on or before the 10th day of September, 1908."

Upon the making of this written contract, it was folded and placed in an envelope, together with a check made by Berryman and payable to Mrs. Owens for the sum of $9,173.32, and the envelope and its contents were taken by Mrs. Owens, Davisson and Berryman to the Citizens National Bank of Roswell, to be held by the Bank “in escrow" until September 10th, pending the furnishing an abstract of title, a favorable report thereon, and final settlement. With the consent and approval of all the parties a memorandum was indorsed upon the envelope in the following terms: "Check enclosed to be held in escrow until September 10, when final settlement is to be made. Deed and abstract to be placed in escrow with this. Abstract to be forwarded to Citizens Bank & Trust Company, Arkadelphia, Arkansas, for examination. No money to be paid over until abstract is approved by purchaser's attorneys. (Signed) J. J. JAFFA, Cashier."

Up to September 10th the Owens Estate had not made good title to Berryman, and on or about that date it was orally agreed between them that the Estate should have thirty or forty days time in which to secure an order of court, and in consideration of this, Berryman, who was stopping on expense at the hotel in Roswell, was put in possession of the property on September 10th, and he remained in possession thereof, exercising acts of ownership thereon until September 22d, on which date (the