by the court March 1, 1897, and an order | entered directing the sheriff to execute a deed to the purchaser and put him in pos session. A deed was accordingly made and the plaintiff put in possession on March 9, 1897. Thereafter Daniel W. Harding purchased the property from the plaintiff Romig, received a deed therefor and entered into possession on March 10, 1897. He improved the property, which up to that time was unimproved prairie land, by the erection of three residences and other permanent structures of the value of $2,000, paid taxes to the amount of $200, and has ever since resided thereon. On May 11, 1898, Myrtle Gillett filed a motion to set aside the judgment, and all proceedings had thereunder, on the ground that the court had never acquired any jurisdiction; that she was, at all times during the pendency of the action, a resident of the territory of Oklahoma, living in an adjoining county and within 20 miles of the mortgaged real estate, and that she had no Knowledge of the institution or prosecution of the cause until long after the sale of the land by the sheriff. Upon the hearing of this motion the court entered an order setting aside the judgment and all subsequent proceedings, and directing that she be put in immediate possession of the premises. This order and judgment of the trial court was affirmed by the supreme court of the territory on June 30, 1900 (10 Okla. 186, 62 Pac. 805), whereupon the case was brought here on appeal. action he had no actual notice thereof in or Sec. 4498. In all cases, any occupying claimant being in quiet possession of any lands or tenements for which such person can show a plain and connected title in law or equity, or being in quiet possession of and holding the same by deed from and under any person claiming title as aforesaid, or being in quiet possession of and holding the same under sale on execution or order of sale against any person claiming title as aforesaid, any person in quiet possession of any land, claiming title thereto and holding the same under a sale and conveyance made in pursuance of any order of court or decree in chancery, where lands are or have been directed to be sold, and the purchasers thereof have obtained title to and possession of the same without any fraud or collusion on his, her, or their part, shall not be evicted or thrown out of possession by any person [115] or persons who shall set up and prove an adverse and better title to said lands, until said occupying claimant, his, her, or their heirs, shall be paid the full value of all lasting and valuable improvements made on by the person or persons under whom he, said lands by such occupying claimant, or The statutes of Oklahoma of 1893, which she, or they may hold the same, previous to were in force at the time of these proceed-ment of suit on such adverse claim by which receiving actual notice by the commenceings, required that actions for the foreclosare of a mortgage be brought in the county in which the real estate is situated. Section 3950 authorized service by publication in Mr. A. A. Hoehling, Jr., argued the such cases "where any or all of the defend-cause, and, with Mr. Charles 8. Wilson, ants reside out of the territory, or where filed a brief for appellants: the plaintiff, with due diligence, is unable to make service of summons upon such de[114]fendant or defendants within the territory." Sections 3951, 3955, and 4498 read as follows: "Sec. 3951. Before service can be made by publication an affidavit must be filed stating that the plaintiff, with due diligence, is unable to make service of the summons upon the defendant or defendants to be served by publication, and showing that the case is one of those mentioned in the preceding section. When such affidavit is filed, the party may proceed to make service by publication." "Sec. 3955. A party against whom a judgment or order has been rendered without other service than by publication in a newspaper, may, at any time within three years after the date of the judgment or order, have the same opened, and be let in to defend. Before the judgment or order shall be opened, the applicant shall give notice to the adverse party of his intention to make such an application, and shall file a full answer to the petition, pay all costs, if the court require them to be paid, and make it appear to the satisfaction of the court, by affidavit, that during the pendency of the eviction may be effected." An application to open a judgment obtained by default, made under a statute, must substantially comply with all of its provisions. Durham v. Moore, 48 Kan. 135, 29 Pac. 472. The court erred in vacating the title of appellant Harding notwithstanding the express statutory provisions that the title of a bona fide purchaser for value, acquired under or in consequence of a judgment there after opened or vacated, shall not thereby be defeated or affected. See Howard v. Entreken, 24 Kan. 428. To hold that the appellant Harding can be so summarily deprived of his money and property, without redress of any kind, is not only in direct conflict with the laws of Oklahoma, but is subversive of every legal and equitable consideration, even without the aid of statutory enactment. 2 Freeman, Judgm. § 509; Reeve v. Kennay, 43 Cal. 649; Hammond v. Davenport, 16 Ohio St. 177; Hahn v. Kelly, 34 Cal. 391, 94 Am. Dec. 742; Ogden v. Walters, 12 Kan. 282; Callen v. Ellison, 13 Ohio St. 446, 82 Am. Dec. 448; Payne v. Lott, 90 Mo. | Sewing Soc. 28 Kan. 424; Tracy v. Gunn, The right to reimbursement of a purchaser in good faith and for a valuable consideration, who has made improvements upon the property, can be supported upon general principles of equity, without regard to statutory provisions. Bright v. Boyd, 1 Story, 478, Fed. Cas. No. 1,875. A purchaser at a foreclosure sale who has made valuable improvements in the belief that he has a clear and absolute title is entitled to be paid for them in case the premises are redeemed. Canal Bank v. Hudson, 111 U. S. 66, 28 L. ed. 354, 4 Sup. Ct. Rep. 303; 2 Jones, Mortg. § 1128, Î129. The attempted ouster, without due process of law, of a bona fide purchaser for value under said foreclosure proceedings, without reimbursement of purchase money or of amounts expended, in good faith and without notice, for improvements, is contrary to the express provisions of the statutes of Oklahoma. Harrison v. Beard, 30 Kan. 532, 2 Pac. 632; Hanson v. Wolcott, 19 Kan. 207; Washburn v. Buchanan, 52 Kan. 417, 34 Pac. 1049; Grouch v. Martin, 47 Kan. 313, 27 Pac. 985; Long v. Fife, 45 Kan. 271, 25 Pac. 594. Under the Kansas practice such a judgment as this can be impeached and set aside, even in an action in ejectment, upon proof aliunde to show that the court did not have jurisdiction. Mastin v. Gray, 19 Kan. 458, 27 Am. Rep. 149; McNeill v. Edie, 24 Kan. 110; Kay v. Walter, 28 Kan. 115; Perry v. St. Joseph & W. R. Co. 29 Kan. 424; Brinkman v. Shaffer, 23 Kan. 531. The doctrine of estoppel or limitation does not apply to a void judgment. Okla. Stat. 1893, § 4471; Freeman, Judgm. § 117. A mortgagee in possession may be ousted before his debt is paid. Jones, Mortg. § 717; Humphrey v. Hurd, 29 Mich. 44; Caruthers v. Humphrey, 12 Mich. 270; Whetstone v. Coffey, 48 Tex. 270; Mills v. Heaton, 52 Iowa, 215, 2 N. W. 1112; Newton v. McKay, 30 Mich. 380; l'arker v. Dacres, 2 Wash. Terr. 439, 7 Pac. 893; Jones, Mortg. § 1678; Payne v. LongBell Lumber Co. 9 Okla. 683, 60 Pac. 235. Mr. Justice Brewer delivered the opin Similar statutory provisions have frequently been passed upon by the courts, and the constitutionality of such legislation up-ion of the court: held, and its provisions construed and applied in accordance with the manifest purpose of such statutes "to secure and give to each one, as near as may be, his own.' Hentig v. Redden, 1 Kan. App. 163, 41 Pac. 1054; Deitzler v. Wilhite, 55 Kan. 200, 40 Pac. 272; Stephens v. Ballou, 25 Kan. 618; Stebbins v. Guthrie, 4 Kan. 353; Glick v. Gregg, 19 Ohio, 57; Beardsley v. Chapman, 1 Ohio St. 119. Mr. Jeremiah M. Wilson filed a brief on behalf of appellants in opposition to motions to quash supersedeas and to dismiss appeal. Mr. William M. Springer argued the cause, and, with Mr. George P. Rush, filed a brief for appellee: A void judgment may be vacated and set aside at any time on motion of the defendant, without advising the court that the defendant has a valid defense to the action in which the pretended judgment is rendered. Hanson v. Wolcott, 19 Kan. 207; Bond v. Wilson, 8 Kan. 228, 12 Am. Rep. 466; Gapen v. Stephenson, 17 Kan. 616; Mastin v. Gray, 19 Kan. 468, 27 Am. Rep. 149; Kirkwood v. Reedy, 10 Kan. 453; Green v. McMurtry, 20 Kan. 193; Pierce v. Butters, 21 Kan. 124; McNeill v. Edie, 24 Kan. 110; Valley Bank & Sav. Inst. v. Ladies' Cong. The supreme court of Oklahoma was of opinion that the affidavit for service by publication was wholly insufficient in that it alleged the nonresidence of defendants simply, upon information and belief, and not positively; that being so insufficient the defendant' Myrtle Gillett was not brought into court, and the judgment and all subsequent proceedings were, as to her, absolutely void. On the other hand, it is contended by the appellants that a separate ground for service by publication is "where the plaintiff, with due diligence, is unable to make service of summons within It may the territory;" that the affidavit for publi- 99 disclosed, and that an affidavit merely al- the purchaser at the foreclosure sale, stands 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 § 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 [117] of the mortgage debt, and granting a right of redemption. It is true that this right of redemption is a favored right. Russell v. Southard, 12 How. 139, 13 L. ed. 927; Villa v. Rodriguez, 12 Wall. 323, 20 L. ed. 406; Bigler v. Waller, 14 Wall. 297, 20 L. ed. 891; Noyes v. Hall, 97 U. S. 34, 24 L. ed. 909; Shillaber v. Robinson, 97 U. S. 68. 24 L. ed. 967. 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 Under 84498 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 3955 a purchaser in good faith has title, and cannot be evicted upon any terms. The decree of the Supreme Court of Okla homa will be reversed and the case remandaside the order of the trial court, and to ed to that court, with instructions to set direct the entry of one which, without disturbing the possession of Harding, will give and make such defense as, under the facts to the appellee the right to appear, plead, of the case and the principles of equity, she is entitled to. 1. 2. district court of - in preservation of pending crim- - A prosecution for murder, pending at the time of the passage of the act of March 3, 1899, establishing a criminal code and code of criminal procedure for Alaska, must, in view of the provision therein for the preservation of pending causes, be regarded as within the "general jurisdiction" in crimi nal cases conferred upon the district court for the district of Alaska by the act of June 6, 1900 (31 Stat. at L. 321, chap. 786), whether that court be one newly created by that act, which contains no provision for a transfer of pending causes, or be an existing tribunal continued thereby. A woman who has been married and divorced is not incompetent as a witness in a capital cause because she is designated on the list of witnesses furnished to the defendant in compliance with U. S. Rev. Stat. NOTE.-A8 to right of self-defense-see notes to Drysdale v. State (Ga.) 6 L. R. A. 424; 1033, by her maiden name, under which When new states have been admitted into she has gone since her divorce some ten or the Union, the territorial courts abolished, twelve years ago. and new state and Federal courts organ8. An Instruction that, in determining the 18-ized, it has always been held that, unless sue of self-defense, the jury must, under the a provision was made for the transfer of evidence, consider the situation of the parpending causes to the new courts, the juris diction failed. tles and the surrounding circumstances, "together with the testimony of witnesses for the prosecution as well as the evidence of the defendant," is not open to the objection that it authorized the consideration of the testimony of the witnesses for the prosecution even if untrue, and withdrew from the Jury in passing on that issue all of the evidence for the defendant except his own testimony, when considered with other instructions giving the rule as to the credibility of witnesses, and enjoining the jury to consider the whole evidence and render a verdict in accordance with the facts proved, and to determine from the evidence the respective situations of the several parties. 4. The refusal of a requested Instruction which singles out certain testimony as determinative of a reasonable doubt of guilt is not error, even if such instruction be a correct one, where the whole case is submitted to the jury. 6. An instruction that an attempt to escape, made after many months of confinement, and comparatively without danger, tended, though only slightly, to prove gullt, was as favorable to the accused as he could demand where the only testimony on that subject related to an escape made in October following an arrest in June, and was objected to solely on the ground that the escape was too remote from the commission of the offense and the arrest and imprisonment to be entltled to go to the jury. A requested instruction, though expressing the law correctly, is properly refused where there are no facts in the case to justify it. 1. A person does not become an accomplice by not disclosing the fact that a homicide has been committed, until some time afterward. [No. 306.] Argued October 14, 1902. McNulty v. Batty, 10 How. 72, 13 L. ed. 333; Baltimore & P. R. Co. v. Grant, 98 U. S. 398, 25 L. ed. 231; Ames v. Colorado C. R. Co. 4 Dill. 251, Fed. Cas 324; Moore ▼. United States, 29 C. C. A. 269, 56 U. S. App. 471, 85 Fed. 465. A list of the names of the witnesses, with their residences, must be served upon the defendant two days before the trial. If this is not done, and objection be made to a wit ness, whose name is not furnished, such witness cannot testify. Rev. Stat. 1033 (U. S. Comp. Stat. 1901, P. 722); Logan v. United States, 144 U. S. 263, 36 L. ed. 429, 12 Sup. Ct. Rep. 617. Assistant Attorney General Beck and Mr. Charles H. Robb argued the cause and filed a brief for defendant in error: The implication that a statute is repealed Patterson v. Tatum, 3 Sawy. 164, Fed. The language employed by the court upon Allen v. United States, 164 U. S. 498, 41 One who is merely present at the commis- 1 Am. & Eng. Enc. Law, 2d ed. p. 391; ber 17, 1902. IN ERROR to the District Court of the IN ERROR to the District Court of the to review a conviction for murder. Affirmed. The facts are stated in the opinion. Mr. L. T. Michener argued the cause, and, with Messrs. W. W. Dudley and Malony & Cobb, filed a brief for plaintiff in error: The act of May 17, 1884, ceased to have any force or effect after the passage of the act of June 6, 1900, which expressly repeals all acts and parts of acts in conflict with it, and does not purport to be an amendment of the act of 1884, but covers the whole field of legislation embraced in the act of 1884. United States v. Tynen, 11 Wall. 88, 20 L. ed. 153; Murphy v. Utter, 186 U. S. 95, 46 L. ed. 1070, 22 Sup. Ct. Rep. 776. Noftsinger v. State, 7 Tex. App. 301; *Mr. Justice McKenna delivered the[120] opinion of the court: On Homer Bird was found guilty of the crime of murder, and was sentenced to death. appeal to this court the judgment and sentence were reversed, and the case remanded for a new trial. 180 U. S. 356, 45 L. ed. 570, 21 Sup. Ct. Rep. 403. 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 The district court of the United States for the district of Alaska was abolished by the act of June 6, 1900. Tornanses v. Melsing, 45 C. C. A. 615, 106"An Act to Define and Punish Crimes in the District of Alaska, and to Provide a Code Fed. 779, 101 of Criminal Procedure for Said District."| On June 6, 1900, Congress passed another 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 him discharged: (1) Because the court had no jurisdiction of the crime charged; (2) because the court had no jurisdiction of the case. 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 [121]of May 17, 1884, and not into this court, and there is no law conferring upon this court jurisdiction over indictments returned into said court. "III. Because this court has no jurisdiction of the offense charged in the indictment herein, in this: The said indictment charges an offense under § 5339 of the Revised Statutes of the United States, while this court has no jurisdiction of crimes, except as de| fined in the Criminal Code for Alaska." The motion was denied and an exception was taken. This ruling constitutes the first assignment of error. 1. The act of 1884 provided a civil government for Alaska, and by 3 it was enacted as follows: "That there shall be, and hereby is, established a district court for said district, with the civil and criminal jurisdiction of district courts of the United States, and the civil and criminal jurisdiction of district courts of the United States, exercising the jurisdiction of cireuit courts, and such other jurisdiction, not inconsistent with this act, as may be established by law; and a district judge shall be appointed for said district, who shall, during his term of office, reside therein, and hold at least two terms of said court therein in each year, one at Sitka, beginning on the 1st Monday in May, and the other at Wrangel, beginning on the 1st Monday in November." By7 it was provided: "That the general laws of the state of Or egon now in force are hereby declared to be the law in said district, so far as the same may be applicable and not in conflict with the provisions of this act or the laws of the United States." [23 Stat. at L. 24, chap. 53.] It was under this law that plaintiff in error was indicted and tried the first time. The act of March 3, 1899, defined the crime of homicide, and divided it into murder in the first and second degrees, and manslaughter. The act contained a clause, it is conceded, saving the jurisdiction of the court over prior cases and crimes. And it is also conceded that the act is still in force, but it is urged that it has no bearing on the questions presented. It is contended that the act of 1884 was entirely repealed and superseded by the act of June 6, 1900, "both by express enactment and by necessary implication;" that "the district court for Alaska created by the act of May 17, 1884,(122) was abolished by the act of June 6, 1900, and an entirely new court created;" and it is hence asserted "that, in the absence of a provision in the latter act, transferring criminal causes pending in the old court to the new, the latter had no jurisdiction of indictments returned into the old court;" that "a statute conferring upon a court 'general' jurisdiction in criminal matters must be construed to refer to and to be limited by the code of criminal law enacted for the territory, and does not include jurisdiction of any offense not embodied in the code." The act of 1884, we have seen, established the district court for Alaska "with the civil and criminal jurisdiction of district courts of the United States, and the civil and criminal jurisdiction of district courts of the United States exercising the jurisdiction of circuit courts." It also provided for the appointment of a district judge, a governor, and other officers. It made provision, as declared in its title, for a civil government in Alaska. The act of June 6, 1900, is entitled "An Act Making Further Provision for a Civil Government for Alaska, and for Other Purposes." It provides for a governor and other officers, and its provisions for a court are as follows: "There is hereby established a district court for the district, which shall be a court of general jurisdiction in civil, criminal, equity, and admiralty causes; and three district judges shall be appointed for the district, who shall, during their terms of office, reside in the divisions of the district to which they may be respectively assigned by the President. "The court shall consist of three divisions. The judge designated to preside over division numbered one shall, during his term of office, reside at Juneau, and shall hold at least four terms of court in the district each year, two at Juneau and two at Skagway, and the judge shall, as near January 1 as practicable, designate the time of holding the terms during the current year. "The judge designated to preside over division numbered two shall reside at St. Michaels during his term of office, and shall hold at least one term of court each year at[128] St. Michaels, in the district, beginning the 3d Monday in June. "The judge designated to preside over division numbered three shall reside at Eagle |