AMERICAN SCHOOL OF MAGNETIC HEALING and J. H. Kelly, Appts., v.

J. M. McANNULTY.

(See S. C. Reporter’s ed. 94-111.)

Postal laws — exclusion from mails — • fraud¬ ulent schemes — mind cure — conclu¬ siveness of decision of Postmaster Gen¬ eral.

prohibiting the delivery of letters addressed to a corporation which assumes to heal dis¬ ease through the Influence of the mind, by the provisions of D. S. Rev. Stat. §§ 3929, 4041, and the act of Congress of March 2, 1895, { 4 (28 Stat. at L. 963, 964, chap. 191), which authorize the retention of let¬ ters directed to any person obtaining money through the mails by false pretenses or promises, as the effectiveness of such treat¬ ment Is a mere matter of opinion, and the

Noth. — As to nonmailable matter — see note

to Timmons v. United States, 30 C. C. A. 79.

187 u. a.

American School of Magnetic Healing v. McAnnulty. 95-97

statutes are only Intended to cover cases of actual fraud In fact.

General that letters addressed to a certain corporation should be refused delivery Is not so conclusive on the Federal courts as to preclude them from granting Injunctive .relief to such corporation, where his action was not authorized by the statutes under Which he assumed to act.

[No. 27.]

Submitted. January 29, 1902. Restored to docket for oral argument February 24,

cided November IT, 1902.

APPEAL from the Circuit Court of the United States for the Western District of Missouri to review a decree dismissing a bill to enjoin a postmaster from carrying out an order of the Postmaster General di¬ recting the retention of letters addressed to a corporation. Reversed.

See same case on motion for temporary injunction, 102 Fed. 565.

Statement by Mr. Justice Peckhams This is an appeal under § 5 of the circuit court of appeals act of 1891, to review di¬ rectly the decree of the circuit court of the United States for the western district of Mis¬ souri, dismissing the bill of complainants (appellants) on the merits. The bill, as amended by leave of the court, averred in substance that the complainants are, the one a business corporation incorporated under the laws of and doing business in the state of Missouri, and the other a resident and citizen of the state of Missouri; that the de¬ fendant was, at the time of the filing of the bill and at the times therein stated, postmas¬ ter in charge of the United States postoffice in the city of Nevada, state of Missouri, and a resident and a citizen of that state; that as such postmaster he has the exclusive management of the postoffice in the city of Nevada, and of the receipt and distribution of mail received at that city through the United States mails.

It was further averred that the American School of Magnetic Healing is located and has its chief office and place of business at the city of Nevada, and the complainant Kelly was at the time of the filing of the [90] bill and at all the dates and times ‘men¬ tioned therein secretary, treasurer, and gen¬ eral manager of the corporation. Ip Novem¬ ber, 1897, he located at Nevada, and engaged in the business of healing diseases and ail¬ ments of the human family, and the business of teaching the science of healing of human ills, and that in April, 1898, he procured the incorporation of the business under the laws of the state of Missouri, under the name of the American School of Magnetic Healing, and among the stockholders of the company the complainant Kelly was one; that large buildings were erected for such business, and large amounts expended in ad¬ vertising the same. The bill further averred as follows:

187 U. S.

“That in and about their business they carried on and conducted, not only the treat¬ ing of people afflicted with ills at their es¬ tablishment at said city, but also engaged in the business of teaching and educating oth¬ ers in the practical science of healing, and that a large amount of their business con¬ sists of treatment by letter and advice to people throughout the United States and for¬ eign countries; and in the treatment under said circumstances, they have built up a large and extensive business in the way of receipts of such treatment, received through the United States mail, by letter, registered package, and otherwise, in the nature of checks, drafts, and United States moneys; that said business has grown to such an ex¬ tent that, immediately and for a long time prior to the grievances hereinafter com¬ plained of, the receipts through the United States mails, in the manner aforesaid, for the treatment of persons throughout the United States and foreign countries, have reached and averaged about from $1,000 t* $1,600 per day.

“And your orators state that said business is a legal and legitimate business, conducted according to business and legal methods, and is founded largely, and almost exclusively, on the physical and practical proposition that the mind of the human race is largely responsible for its ills, and is a perceptible factor in the treating, curing, benefiting, and remedying thereof.

“And that the human race does possess the innate power, through proper exercise of the faculty of the brain and mind, to largely control and remedy the ills that hu¬ manity is heir to, ‘and complainants discard

and eliminate from their treatment what is commonly known as divine healing and Christian science, and complainants are con¬ fined to practical scientific treatment, eman¬ ating from the source aforesaid.

“That for a long time previous and prior to the grievances hereinafter mentioned, said corporation ha3 been sending out a large amount of advertising matter through the United States postoffice at said city of Ne¬ vada, and that all of its receipts, by checks, drafts, or money orders aforesaid, have been received by and delivered to them through the United States postoffice at the city of Nevada, of which the respondent herein has exclusive charge as postmaster aforesaid, and had, during the time aforesaid, been re¬ ceiving a large number of letters addressed to said institution and to its office, regard¬ ing its treatment and manner of treatment, and business letters pertaining to, and in¬ quiring into, the manner of treatment.

“That all such mail, letters, and commu¬ nications are generally addressed and di¬ rected to the American School of Magnetic Healing at said city, and that in many cases said letters are and may be addressed to said J. H. Kelly, secretary or treasurer or man¬ ager, or to J. H. Kelly, individually, or to Prof. J. H. Kelly, or to J. H. Kelly or Prof.

J. H. Kelly, secretary, treasurer, or mana¬ ger of the American School of Magnetic Healing.

Oct. Term,

OT-1Q9

Sufbimi Court or the Uwtb States.

••Hat said Kelly is also receiving, and for a leas time past has been receiving, letters addressed to him individually upon social matters from friends and acquaintances, and concerning business not pertaining to or con¬ nected with the business hereinafter stated.

"That prior to the grievances hereinaftw mentioned, said institute was receiving in the way of letters addressed to it or to its officers in the manner aforesaid, an average of about the sum of 3,000 letters per day, and ever since the happening of the griev¬ ances hereinafter mentioned there have been accumulating in said postoffice letters be¬ longing to your orator, addressed in the man¬ ner before stated, probably to the total num¬ ber of 25,000 letters.

“That all of said letters, as your orators are informed and believe, are duly stamped (•aland ready for delivery to them but for the 1 action of the postmaster and Postal Depart¬ ment hereinafter mentioned.”

It was then averred that persons who were prompted by assumed competitive interfer¬ ence with their business complained to the United States Postoffice Department at Washington that complainants were not en¬ gaged in legitimate business, and therefore, on May 15, 1890, the Postoffice Department made the following order:

upon the outside of such letters or •matter. [••] Provided, however, that Where there is noth¬ ing to indicate who are the senders of let¬ ters not registered, or other matter, you are directed in that case to send such letters and Flatter to the deed, letter office, with, the word "fraudulent” plainly written or stamped thereon, to be disposed of as other dead matter, under the laws and regulations

applicable thereto. _ ...

Ch. Emory Smith, Postmaster General.

To the Poetmaster, Nevada, Missouri.

Postoffice Department, Washington, D. C., May 15, 1900.

It having been made to appear to the Post¬ master General, upon evidence satisfactory to him, that the American School of Mag¬ netic Healing, S. A. Weltmer, president, J. H. Kelly, secretary, and J. A. Kelly, at -Ne- vada, Missouri, are engaged in conducting a scheme or device for obtaining _ money through the mails by means of false and fraudulent pretenses, representations, and promises, in violation of the act of Con¬ gress entitled “An Act to Amend Certain Sections of the Revised Statutes Relating to Lotteries, and for Other Purposes, Approved September 19, 1900.”

Now, therefore, by authority vested in him by said act and by the act of Congress en¬ titled “An Act for the Suppression of Lot¬ tery Traffic through International and In¬ terstate Commerce and the Postal Service, Subject to the Jurisdiction and Laws of the United States, Approved March 2, 1895,” the Postmaster General hereby forbids you to pay any postal money order drawn to the order of said concern and persons, and you are hereby directed to inform the remitter of any such postal money order that payment thereof has been forbidden, and that the amount thereof will be returned upon the presentation of a duplicate money order, ap¬ plied for and obtained under the regulations of the Department.

And you are hereby instructed to return all letters, whether registered or not, and other mail matter which shall arrive at your office directed to the said concern and per sons, to the postmasters at the oilircs at which they were originally mailed, to be de¬ livered to the senders thereof, with the word “fraudulent” plainly written or stamped 02

Since such order the defendant has refused to deliver any mail whatever to the com- plainants, and there had, when the bill was filed, as complainants aver on informa¬ tion and belief, accumulated at the post- office at Nevada letters addressed to them containing checks, drafts, money orders, or money to an aggregate of at least $10,000 in value; that these checks, drafts, etc., came from various customers and clients through¬ out the United States and foreign countries, who had all been treated and for whom the complainants had performed services, under contracts with such parties, and that the sums were so sent in the respective letters in payment for services performed and ren¬ dered to the senders respectively, all of the senders being willing, and at all times have been willing, that their letters containing the remittances should be turned over to the complainants, they making no objection or complaint thereto.

The complainants further averred that they had been informed by the defendant that on Monday, the 28th day of May, then coming, he intended to stamp on each and every one of the letters addressed to the complainants, under any of the designations theretofore mentioned in the bill, the word “fraudulent” across the face of each letter, without opening it and without knowing what such letter contained, or the nature or character of the contents, and that the defendant would then return the letter to the sender thereof in all cases where, from the outside of the letter or envelope, he was able to determine from whom the same was received, and as to all other letters addressed to the complainants, where he was unable to •determine from the outside from whom the[lOO) letters were sent, the defendant would stamp with the word “fraudulent,” and send to the dead letter office of the United States Postoffice Department all such letters; and the defendant stated that he would refuse to deliver any further mail or letters to the complainants or either of them, that might be received at his said postoffice addressed to them or either of them.

Complainants then averred that if the re¬ spondent were permitted to do these things, and to return the letters, and refused in the future to deliver or allow complainants to receive any letters or mail matter at the postoffice at Nevada, it would work irrepar¬ able injury, loss, and damage to the com¬ plainants, and would result in eventually embarrassing, crippling, breaking up, and

187 U. S.

American School or Magnetic Hralinb t. MoAnaultt.

100-101

destroying complainants’ legitimate busi¬ ness; and that the complainants had no other legal or adequate remedy by which they could prevent the committing of the acts and grievances complained of than by writ of injunction.

The bill then averred that the action of the defendant was based upon the order of the Postmaster General, above Bet forth, who assumed to act under SS 3929 and 4041 of the Revised Statutes of the United States, and $ 4 of an act approved March 2, 1895. 28 Stat. at L. 963, 964, chap. 191.

Section 3929 of the Revised Statutes is set forth in the margin.f

Section 4041 is of the same purport as § |101]3929, excepting ‘that instead of providing for the retention of registered letters, it for¬ bids the payment by any postmaster to the person or company described of any postal money orders drawn to his or its order, or to his or its favor, or to any agent of any such person or company, and it provides for the return to the remitters of the sums of money named in those money orders. Sec¬ tion 4 of the act (Laws of 1895, chap. 191; 28 Stat. at L. 693, 694) amended § 3929 of the Revised Statutes so as to provide for the retention of all letters, instead of merely registered letters as in the original section.

Before the issuing of the written order by the Postmaster General prohibiting the de¬ livery of mail matter to the complainants, and pursuant to notice from the Postmaster General, the complainants went before that official at Washington and had a hearing before him, and gave their reasons why what is termed a “fraud order” should not be is¬ sued, and that the Postmaster General, aft¬ er hearing evidence such as in his judgment was contemplated by the sections of the stat¬ utes above mentioned, issued the order above referred to, and thereupon the defendant has refused to permit the delivery of the mail, and assigns as his only reason for so doing that it would be in violation of the order of the Postmaster General, founded upon the provisions of the statute already set forth.

The bill then averred that the statutes have no application whatever to the conduct or carrying on of complainants’ business, which is a legitimate one, and that no fraud, deceit, deception, or misrepresentation of any kind has ever been practised by them, and that their customers or clients do not claim or assert that the complainants have in any manner practised any fraud, deceit, or mis¬ representation at any time in procufing the business from them, or in curing their ills

tSec. 3929. The Postmaster General may, upon evidence satisfactory to him that any per¬ son Is engaged In conducting any fraudulent lottery, gift enterprise, or scheme for the dis¬ tribution of money, or of any real or personal property, by lot, chance, or drawing of any kind, or in conducting any other scheme or de¬ vice for obtaining money through the mails by means of false or fraudulent pretenses, repre¬ sentations, or promises. Instruct postmasters at any postoffices at which registered letters arrive directed to any such person, to return

187 V. 8.

or diseases. Complainants further awerrp# that the provisions of the statutes above mentioned are in violation of the .4th, 5th, and 14th Amendments to the Constitution of the United States, in that they undertake to deprive persons of their property and property rights without due process of law; and, if the statutes were enforced they would place in the power of the postmaster and the Postoffioe Department of the United States the sole *and exclusive right to pass [1081 upon the rights of the complainants, as be¬ tween themselves and other parties with whom they deal and transact business through the mails, without a hearing; and that the provisions of the statute are void for the reason that they provide for no tri¬ bunal, court, or authority to hear or deter¬ mine any violation of the statute or claimed violation of the statutes, but placed the same absolutely in the power and control of the postmasters and the Postoffice Department; and that the statutes vest an arbitrary dis¬ cretion in the postmasters and the Postoffice Department or the Postmaster General to determine as he may see fit, whether right or wrong, the question as to who shall or who shall not have and receive mail from the United States Postoffice Department, and who shall and who shall not use the United States mails, and vest in the Department or the Postmaster General if enforced, the pow¬ er to interdict and absolutely prohibit the carrying on of all commercial and business transactions of the country done through the mailing system, if they see fit to do so, and make the postmasters and the Postoffice Department the sole judges in their own case.

The complainants then asked for an in¬ junction to restrain the postmaster from car¬ rying out the order of the Postmaster Gen¬ eral, and that a decree might be entered per¬ petually enjoiningthedefendantas prayed for.

The defendant demurred to the complain¬ ants’ amended bill (1) on the ground that the complainants had not stated any such case as entitled them to any relief; (2) be¬ cause the complainants had not stated any ground for equitable relief against the de¬ fendant, and had not shown any reason why an injunction should be granted.

The court sustained the demurrer, and, the complainants declining to plead further, it was decreed by the court that the amended bill of the complainants was insufficient in law and equity, and it was thereupon dis¬ missed at complainants’ cost.

Mr. James H. Harkless for appellants

all such registered letters to the postmasters at the offices at which they were originally mailed, with the word “fraudulent" plainly written or stamped upon the outside of such letters ; and all such letters so returned to such postmasters shall be by them returned to the writers thereof, under such regulations as the Postmaster General may prescribe. But noth¬ ing contained In this title shall be so construed as to authorize any postmaster or other per¬ son to open any letter not addressed to himself.

9S

108-405

SUPREME Coubt or

on original submission. Messrs. John O’ Grady and Charles B. Crysler were with him on his brief.

Solicitor General Richards and Mr. Robert A. Howard for appellee on orig¬ inal submission:

In the exercise of his discretion, the Post¬ master General cannot be supervised or con¬ trolled by the courts.

Enterprise Bov. Asso. V. Zumstein, 64 Fed. 837. '

The finding of the Postmaster General on the issue of fact is an act involving the ex¬ ercise of judgment and discretion.

Enterprise Sav. Asso. v. Zumstein, 64 Fed. 840.

Courts will not interfere to control an executive officer in the discharge of a duty involving the exercise of judgment and dis¬ cretion.

Decatur r. Paulding, 14 Pet. 515, 10 L. ed. 568 ; Gaines v. Thompson, 7 Wall. 347, 19 L. ed. 62.

Mr. James H. Harkless for appellants on oral argument.

Mr. Robert A. Howard for appellee on on oral argument.

•Mr. Justice Peckham, after making the foregoing statement of facts, delivered the opinion of the court:

The bill of the complainants as amended raises some grave questions of constitutional law which, in the view the court takes of the case, it is unnecessary to decide. We may assume, without deciding or expressing any opinion thereon, the constitutionality in all particulars of the statutes above re¬ ferred to, and therefore the questions arising in the case will be limited (1) to the in¬ quiry as to whether the action of the Post¬ master General under the circumstances set forth in the complainants’ bill is justified by the statutes ; and ( 2 ) , if not, whether the complainants have any remedy in the courts.

First. As the case arises on demurrer, all material facts averred in the bill are, of course, admitted. It is therefore admitted that the business of the complainants is founded “almost exclusively on the physical and practical proposition that the mind of the human race is largely responsible for its ills, and is a perceptible factor in the treat¬ ing, curing, benefiting, and remedying there¬ of, and that the human race does possess the innate power, through proper exercise of the faculty of the brain and mind, to largely control and remedy the ills that humanity is heir to, and (complainants) discard and eliminate from their treatment what is com¬ monly known as divine healing and Chris¬ tian science, and they are confined to prac¬ tical scientific treatment, emanating from the source aforesaid.”

These allegations are not conclusions of law, but are statements of fact upon which, as averred, the business of the complainants is based, and the question is whether the com¬ plainants, who are conducting the business upon the basis stated, thereby obtain money *nd property through the m ils by means of false or fraudulent pretenses, representa- $4

the United States. .< •. - f Oct. Term:,

tions, or promises. Gan such a business bs properly pronounced a fraud within the stat¬ utes of the United States ?

There can be no doubt that the influence of the mind upon the 'physical condition of

the body is very powerful, and that a hope¬ ful mental state goes far, in many cases, not only to alleviate, but even to aid very largely in the cure of an illness from which the body may suffer. And it is said that na¬ ture may itself, frequently, if not generally! heal the ills of the body without recourse to medicine, and that it cannot be doubted that in numerous cases nature, when left to itself, does succeed in curing many bodily ills. How far these claims are borne out by actual experience may be matter of opin- , ion. Just exactly to what extent the men¬ tal condition affects the body, no one can accurately and definitely say. One person may believe it of far greater efficacy than an¬ other, but surely it cannot -be said that it is a fraud for one person to contend that the mind has an effect upon the body and its physical condition greater that even a vast majority of intelligent people might be will¬ ing to admit or believe. Even intelligent people may and indeed do differ among themselves as to the extent of this mental effect. Because the complainants might or did claim to be able to effect cures by rea¬ son of working upon and affecting the men¬ tal powers of the individual, and directing them towards the accomplishment of a cure of the disease under which he might be suf¬ fering, who can say that it is a fraud, or a false pretense or promise within the mean¬ ing of these statutes? How can anyone lay down the limit and say beyond that there are fraud and false pretenses? The claim of the ability to cure may be vastly greater than most men would be ready to admit, and yet those who might deny the existence or virtue of the remedy would only differ in opinion from those who assert it. There is no exact standard of absolute truth by which to prove the assertion false and a fraud.

We mean by that to say that the claim of complainants cannot be the subject of proof as of an ordinary fact; it cannot be proved as a fact to be a fraud, or false pretense or promise, nor can it properly be said that those who assume to heal bodily ills or in¬ firmities by a resort to this method of cure are guilty of obtaining money under false pretenses, such as are intended in the stat¬ utes, which evidently do not assume to deal with mere matters of opinion upon subjects which are not capable of proof as to their falsity. We may not 'believe in the efficacy[105| of the treatment to the extent claimed by complainants, and we may have no sympa¬ thy with them in such claims, and yet their effectiveness is but matter of opinion in any court. The bill in this case avers that those who have business with complainants are satisfied with their method of treatment, and are entirely willing that the money they sent should be delivered to the complainants. In other words, they seem to have faith in the efficacy of the complainants’ treatment, and in their ability to heal as claimed by them.

187 U. S.

1902

105-107

American School of Magnetic Healing v. McAnnclty.

If they fail, the answer might be that all human means of treatment are also liable to fail, and will necessarily fail when the ap¬ pointed time arrives. There is no claim that the treatment by the complainants will al ways succeed.

Suppose a person should assert that, by the use of electricity alone, he could treat diseases as efficaciously and successfully as the same have heretofore been treated by “regular” physicians. Would these statutes justify the Postmaster General, upon evi¬ dence satisfactory to him, to adjudge such c’aim to be without foundation, and then to pronounce the person so claiming, to be guilty of procuring, by false or fraudulent pretenses, the moneys of people sending him money through the mails, and then to pro¬ hibit the delivery of any letters to him? The moderate application of electricity, it is strongly maintained, has great effect upon the human system, and just how far it may cure or mitigate diseases no one can tell with certainty. It is still in an empirical stage, and enthusiastic believers in it may regard it as entitled to a very high posi¬ tion in therapeutics, while many others may think it absolutely without value or potency in the cure of disease. Was this kind of question intended to be submitted for deci¬ sion to a Postmaster General, and was it in¬ tended that he might decide the claim to be a fraud and enjoin the delivery of letters through the mail addressed to the person practising such treatment of disease? As the effectiveness of almost any particular method of treatment of disease is, to a more or less extent, a fruitful source of differ¬ ence of opinion, even though the great major¬ ity may be of one way of thinking, the effi¬ cacy of any special method is certainly not a matter for the decision of the Postmaster General within these statutes relative to £108]fraud. ‘Unless the question may be reduced to one of fact, as distinguished from mere opinion, we think these statutes cannot be in¬ voked for the purpose of stopping the deliv¬ ery of mail matter.

Vaccination is believed by many to be a preventive of smallpox, while others re- ard it as unavailing for that purpose. Un- er these statutes could the Postmaster Gen¬ eral, upon evidence satisfactory to him, de¬ cide that it was not a preventive, and ex¬ clude from the mails all letters to one who practised it and advertised it as a method of prevention, on the ground that the moneys he received through the mails were procured by false pretenses?

Again, there are many persons who do not believe in the homeopathic school of medi¬ cine, and who think that such doctrine, if practised precisely upon the lines set forth by its originator, is absolutely inefficacious in the treatment of diseases. Are homeo¬ pathic physicians subject to be proceeded against under these statutes, and liable, at the discretion of the Postmaster General, upon evidence satisfactory to him, to be found guilty of obtaining money under false pretenses, and their letters stamped as fraudulent and the money contained therein 187 U. S.

as payment for their professional services sent back to the writers of the letters? And, turning the question around, can physicians of what is called the “old school” be thus proceeded against ? Both of these different schools of medicine have their followers, and many who believe in the one will pronounce the other wholly devoid of merit. But there is no precise standard by which to measure the claims of either, for people do recover who are treated according to the one or the other school. And so, it is said, do people recover who are treated under this mental theory. By reason of it? That cannot be averred as matter of fact. Many think they do. Others are of the contrary opin¬ ion. Is the Postmaster General to decide the question under these statutes?

Other instances might be adduced to illus¬ trate the proposition that these statutes were not intended to cover any case of what the Postmaster General might think to be false opinions, but only eases of actual fraud in fact, in regard to which opinion formed no basis.

It may, perhaps, be urged that the in- [10] stances above cited by way of illustration do not fairly represent the case now before us, but the difference is one of degree only.

It is a question of opinion in all the cases, and although we may think the opinion may be better founded and based upon a more in¬ telligent and a longer experience in some cases than in others, yet after all, it is, in each case, opinion only, and not existing facts with which these cases deal. There are, as the bill herein shows, many believers in the truth of the claims set forth by com¬ plainants. and it is not possible to deter¬ mine as a fact that those claims are so far unfounded as to justify a determination that those who maintain them and practise upon that basis obtain their money by false pre¬ tenses within the meaning of these statutes.

The opinions entertained cannot, like alle¬ gations of fact, be proved to be false, and therefore it cannot be proved, as matter of fact, that those who maintain them obtain their money by false pretenses or promises, as that phrase is generally understood, and as, in our opinion, it is used in these statutes.

That the complainants had a hearing be¬ fore the Postmaster General, and that his de¬ cision was made after such hearing, cannot affect the case. The allegation in the bill as to the nature of the claim of complain¬ ants and upon what it is founded is admitted by the demurrer, and we therefore have un¬ disputed and admitted facts, which show upon what basis the treatment by complain¬ ants rests, and what is the nature and char¬ acter of their business. From these admitted facts, it is obvious that complainants, in conducting their business, so far as this rec¬ ord shows, do not violate the laws of Con¬ gress. The statutes do not, as matter of law, cover the facts herein.

Second. Conceding, for the purpose of this case, that Congress has full and abso¬ lute jurisdiction over the mails, and that it may provide who may and who may not use them, and that its action is not subject to review by the courts, and also conceding

95

107-110

Supreme Court of the United States.

Oct. Term,

fcha conclusive character of the determination by the Postmaster General of any material apd relevant questions of fact arising in the administration of the statutes of Congress relating to his department, the question still remains as to the power of the court to grant relief where the Postmaster General

has assumed ‘and exercised jurisdiction in a case not covered by the statutes, and where he has ordered the detention of mail matter, when the statutes have not granted him power so to order. Has Congress intrusted tbe administration of these statutes wholly to the discretion of the Postmaster General, and to such an extent that his determina¬ tion is conclusive upon all questions arising under those statutes, even though the evi¬ dence which is adduced before him is wholly uncontradicted, and shows, beyond any room for dispute or doubt, that the case, in any view, is beyond the statutes, and not cov¬ ered or provided for by them ?

That the conduct of the postoffice is a part of the administrative department of the gov¬ ernment is entirely true, but that does not necessarily and always oust the courts of jurisdiction to grant relief to a party ag¬ grieved by any action by the head, or one of the subordinate officials, of that Depart¬ ment, which is unauthorized by the statute under which he assumes to act. The acts of all its officers must be justified by some law, and in case an official violates the law to the injury of an individual the courts gen¬ erally have jurisdiction to grant relief.

The Land Department of the United States is administrative in its character, and it has been frequently held by this court that, in the administration of the public land sys¬ tem of the United States, questions of fact are for the consideration and judgment of the Land Department, and its judgment thereon is final. Burfenning v. Chicago, St. P. M. & 0. R. Co. 163 U. S. 321, 41 L. ed. 175, 16 Sup. Ct. Rep. 1018; Johnson v. Drew, 171 U. S. 93, 99, 43 L. ed. 88, 91, 18 Sup. Ct. Rep. 800; Oardner v. Bonestell, 180 U. S. 362, 45 L. ed. 574, 21 Sup. Ct. Rep.

While the analogy between the above-cited cases and the one now before us is not per¬ fect, yet, even in them it is held that the de¬ cisions of the officers of the Department upon questions of law do not conclude the courts, and they have power to grant relief to an individual aggrieved by an erroneous de¬ cision of a legal question by Department officers.

Thus in the Burfenning Case, 163 U. S. 321, 41 L. ed. 175, 16 Sup. Ct. Rep. 1018, a tract of land had been reserved from home¬ stead and pre-emption, and had been includ¬ ed within the limits of an incorporated town, notwithstanding which the Land Department had decided that the land wAs open to entry, and had granted a patent under the statute

‘relating to homesteads. The court said that “when, by act of Congress, a tract of land has been reserved from homestead and pre-emption, or dedicated to any special pur¬ pose, proceedings in the Land Department in defiance of such reservation or dedication,

although culminating in a patent, transfer no title, and may be challenged in an action at law. In other words, the action of ths Land Department cannot override the ex¬ pressed will of Congress, or convey away public lands in disregard or defiance thereof.”

Here it is contended that the Postmaster General has, in a case not covered by the acts of Congress, excluded from the mails letters addressed to the complainants. His right to exclude letters, or to refuse to per¬ mit their delivery to persons addressed, must depend upon some law of Congress, and if no such law exists, then he cannot exclude or refuse to deliver them. Conceding, or- guendo, that when a question of fact arises, which, if found in one way, would show a violation of the statutes in question in some particular, the decision of the Postmaster General that such violation had occurred, based upon some evidence to that effect, would be conclusive and final, and not the subject of review by any court, yet to that assumption must be added the statement that, if the evidence before the Postmaster General, in any view of the facts, failed to show a violation of any Federal law, the determination of that official that such vio¬ lation existed would not be the determina¬ tion of a question of fact, but a pure mistake of law on his part, because the facts, being conceded, whether they amounted to a vio¬ lation of the statutes would be a legal ques¬ tion, and not a question of fact. Being a question of law simply, and the case stated in the bill being outside of the statutes, the result is that the Postmaster General has or¬ dered the retention of letters directed to complainants in a ease not authorized by those statutes. To authorize the interfer¬ ence of the Postmaster General, the facts stated must, in some aspect, be sufficient to permit him, under the statutes, to make the order.

The facts, which are here admitted of rec¬ ord, show that the case is not one which, by any construction of those facts, is covered or provided for by the statutes under which the Postmaster ‘General has assumed to act,

and his determination that those admitted facts do authorize his action is a clear mis¬ take of law as applied to the admitted facts, and the courts, therefore, must have power in a proper proceeding to grant relief. Oth¬ erwise, the individual is left to the abso¬ lutely uncontrolled and arbitrary action of a public and administrative officer, whose action is unauthorized by any law, and is in violation of the rights of the individual. Where the action of such an officer is thus unauthorized, he thereby violates the prop¬ erty rights of the person whose letters are withheld.

In our view of these statutes the complain¬ ants had the legal right, under the general acts of Congress relating to the mails, to have their letters delivered at the postoffice as directed. They had violated no law which Congress had passed, and their letters con¬ tained checks, drafts, money orders, and money itself, all of which were their prop-

187 IT. S.

ISOS.

Romig v. Gillett.

110-11*

erty m soon as they were deposited in the various postoffices for transmission by mail. They allege, and it is not difficult to see that the allegation is true, that, if such action be persisted in, these complainants will be entirely cut off from all mail facilities, and their business will neoessarily be greatly in¬ jured, if not wholly destroyed, such busi¬ ness being, so far as the laws of Congress are concerned, legitimate and lawful. In other words, irreparable injury will be done to these complainants by the mistaken act of the Postmaster General in directing the defendant to retain and refuse to deliver let¬ ters addressed to them. The Postmaster General’s order, being the result of a mis¬ taken view of the law, could not operate as a defense to this action on the part of the defendant, though it might justify his obe¬ dience thereto until some action of the court. In such a case as the one before us there is no adequate remedy at law, the injunction to prohibit the further withholding of the mail from complainants being the only rem¬ edy at all adequate to the full relief to which the complainants are entitled. Although the Postmaster General had jurisdiction over the subject-matter (assuming the validity of the acts), and therefore it was his duty, upon complaint being made, to decide the ques¬ tion of law whether the case stated was

within the statute, yet such decision, being a legal error, does not bind the courts.

Without deciding, therefore, or expressing any opinion upon the various constitutional objections set out in the bill of complain¬ ants, but simply holding that the admitted facts show no violation of the statutes cited above, but an erroneous order given by the Postmaster General to defendant, which the courts have the power to grant relief against, we are constrained to reverse the judgment of the circuit court, with instruc¬ tions to overrule the defendant’s demurrer to the amended bill, with leave to answer, and to grant a temporary injunction as ap¬ plied for by complainants, and to take such further proceedings as may be proper, and not inconsistent with this opinion. In over¬ ruling the demurrer, we do not mean to pre¬ clude the defendant from showing on the trial, if he can, that the business of com¬ plainants, as in fact conducted, amounts to a violation of the statutes as herein con¬ strued.

Judgment reversed.

Mr. Justice White and Mr. Justice McKenna, believing the judgment should be affirmed, dissented from the foregoing opinion.

JOHN ROMIG and Daniel W. Harding, Appts.,

V.

MYRTLE GILLETT.

(See S. C. Reporter’s ed. 111-117.)

Mortgages — foreclosure — insufficient af¬ fidavit for service by publication — rights of grantee of mortgagor.

187 TT. S. U. S., Book 47.

ure sale cannot, because of the Insufficiency of the affidavit for service by publication, be dispossessed or the judgment set aside by a court of equity at the Instance of one claiming under the mortgagor by a deed sub¬ sequent to the mortgage, which remains un¬ paid ; but the latter is only entitled to be let in to make any equitable defense which he may have.

[No. 52.]

Argued October 20, 21, 1902. Decided No¬ vember 17, 1902.

APPEAL from the Supreme Court of the Territory of Oklahoma to review a judgment affirming a judgment of the trial court which had set aside a judgment of foreclosure and all subsequent proceedings, and directed that the grantee of the mort¬ gagor be put in immediate possession of the mortgaged premises. Reversed.

See same case below, 10 Okla. 186, 62 Pac.

Statement by Mr. Justice Brewers *On February 2, 1895, Don A.Gillettmade [118] and delivered to John Romig a note for $700, secured by a mortgage on 80 acres in Garfield county, Oklahoma. On February 6, 1895, the mortgagor sold and conveyed the real estate to Myrtle Gillett. On March 11, 1896, the mortgagee, Romig, commenced an action of foreclosure in the district court of that county against Don A. Gillett and Myrtle Gillett. In the petition, Myrtle Gib lett was alleged to have some interest in th« real estate, but junior and subsequent to plaintiff’s mortgage. A summons was is¬ sued and returned not served, the sheriff certifying that the defendants were not found in Garfield county. On June 2, plain¬ tiff filed an affidavit for publication, which affidavit disclosed fully the nature of the action and the relief sought, and added:

“Affiant further says that he is unable, and that the plaintiff is unable by using due diligence, to obtain service of summons on the said defendants within the territory of Oklahoma.

“Affiant further states that on the — day of March, 1896, he caused a summons to be issued in said cause for said defendants, di¬ rected to the sheriff of Garfield county, Ok¬ lahoma territory. Sheriff made return, ‘Defendants not found in my county.’

“Affiant further states upon information and belief that the said defendants Don A. Gillett and Myrtle Gillett are nonresidents of the territory of Oklahoma, and that serv¬ ice of summons cannot be made on the said defendants Don A. Gillett and Myrtle Gil¬ lett within the said territory of Oklahoma, and that said plaintiff wishes to obtain serv¬ ice upon said defendants by publication ; and further, affiant sayeth not.”

•Publication was mode and proof thereof [11 3] filed as required by the statutes. On De¬ cember 18, 1896, a judgment of foreclosure was entered against both defendants, and a sale of the real estate ordered. An order of sale was issued on January 20, 1897. A sale was made to the plaintiff and confirmed 7 97

Supreme Court of the United States.

Oct. Term.

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,

chased the property from the plaintiff Ro mig, received a deed therefor and entered into possession on March 10, 1897. He im¬ proved the property, which up to that time was unimproved prairie land, by the erec¬ tion 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 juris¬ diction; that she was, at all times during the pendency of the action, a resident of the territory of Oklahoma, living in an adjoin¬ ing county and within 20 miles of the mort¬ gaged 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 set¬ ting 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 Pae. 805), whereupon the case was brought here on appeal.

The statutes of Oklahoma of 1893, which were in force at the time of these proceed¬ ings, required that actions for the foreclos¬ ure of a mortgage be brought in the county in which the real estate is situated. Section 3950 authorized service by publication in such cases “where any or all of the defend¬ ants reside out of the territory, or where the plaintiff, with due diligence, is unable to make service of summons upon such de¬ ll 14] fendant *or defendants within the terri¬ tory.” Sections 3951, 3955, and 4498 read as follows:

“Sec. 3951. Before service can be made by publication an affidavit must be filed stat¬ ing 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 sec¬ tion. When such affidavit is filed, the party may proceed to make service by publication.”

“Sec. 3955. A party against whom a judg¬ ment or order has been rendered without other service than by publication in a news¬ paper, may, at any time within three years after the date of the judgment or order, have the same opened, and be let in to de¬ fend. 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

action he had no actual notice thereof in time to appear in court and make his de¬ fense ; but the title to any property, the sub¬ ject of the judgment or order sought to be opened, which by it, or in consequence of it, shall have passed to a purchaser in good faith, shall not be affected by any proceed¬ ings under this section.”

“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 posses¬

sion of and holding the same by deed . . . from and under any person claiming title as aforesaid, ... or being in quiet posses¬ sion of and holding the same under sale on execution or order of sale against any per¬ son claiming title as aforesaid, ... or 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 there¬ of 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 said lands by such occupying claimant, or by the person or persons under whom he, she, or they may hold the same, previous to receiving actual notice by the commence¬ ment of suit on such adverse elaim by which eviction may be effected.”

Mr. A. A. Hoehling, Jr., argued the cause, and, with Mr. Charles 8. Wilson, filed a brief for appellants:

An application to open a judgment ob¬ tained by default, made under a statute, must substantially comply with all of its provisions.

Durham v. Moore, 48 Kan. 135, 29 Pac.

The court erred in vacating the title of appellant Harding notwithstanding the ex¬ press 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.

Howard v. Entreken, 24 Kan. 428. See also Ouiteau v. Wisely, 47 Ill. 433; Taylor v. Boyd, 3 Ohio, 338, 17 Am. Dec. 603.

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. Ken¬ nedy, 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.

187 U. S.

Romig v. Gellett.

115, 116

448, 82 Am. Dec. 448 ; Payne v. Lott, 90 Mo. 676, 3 S. W. 402; Jones x. Driskill, 94 Mo. 100, 7 S. W. Ill; Schmidt v. A Hemeyer, 100 Mo. 207, 13 S. W. 405; Evans x. Pike, 118 U. S. 241, 30 L. ed. 234, 6 Sup. Ct. Rep. 1090; Donaldson x. Roman, 8 Mart. N. S. 162; Stockton x. Downey, 6 La. Ann. 581; Taylor x. Huey, 11 La. Ann. 614; Brobst x. Brock, 10 Wall. 519, sub nom. Doe ex dern. Brobst x. Roe, 19 L. ed. 1002; Bryan x. Kales, 162 U. S. 411, 40 L. ed. 1020, 16 Sup. Ct. Rep. 802 ; Bryan v. Brasius, 162 U. S. 415, 40 L. ed. 1022, 16 Sup. Ct. Rep. 803; Bryan x. Pinney, 162 U. S. 419, 40 L. ed. 1023, 16 Sup. Ct. Rep. 804.

The right to reimbursement of a pur¬ chaser in good faith and for a valuable con¬ sideration, 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 en¬ titled to be paid for them in case the prem¬ ises are redeemed.

Caiyal Bank v. Hudson, 111 U. S. 66, 28 L. ed. 354, 4 Sup. Ct. Rep. 303; 2 Jones, Mortg. §§ 1128, 1129.

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 with¬ out notice, for improvements, is contrary to the express provisions of the statutes of Oklahoma.

Similar statutory provisions have fre¬ quently been passed upon by the courts, and the constitutionality of such legislation up¬ held, and its provisions construed and ap¬ plied in accordance with the manifest pur¬ pose of such statutes “ to secure and give to each one, as near as may be, his own.”

Hentig x. Redden, 1 Kan. App. 163, 41 Pac. 1054; Deitzler x. Wilhite, 55 Kan. 2i>0, 40 Pac. 272; Stephens v. Ballou, 25 Kan. 618 ; Stebbins v. Guthrie, 4 Kan. 353 ; Glick v. Gregg, 19 Ohio, 57 ; Beardsley v. Chap¬ man, 1 Ohio St. 119.

Mr. Jeremiah M. Wilson filed a brief on behalf of appellants in opposition to mo¬ tions 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 defend¬ ant, without advising the court that the de¬ fendant has a valid defense to the action in which the pretended judgment is rendered.

Hanson x. Wolcott, 19 Kan. 207 ; Bond x. Wilson, 8 Kan. 228, 12 Am. Rep. 466; Gapen v. Stephenson, 17 Kan. 616; Mastin x. Gray, 19 Kan. 468, 27 Am. Rep. 149; Kirkwood v. Reedy, 10 Kan. 453; Green x. MoMurtry, 20 Kan. 193; Pierce x. Butters, 21 Kan. 124; McNeill v. Edie, 24 Kan. 110; Valley Bank & Sav. Inst. x. Ladies? Cong. 187 U. S.

Seunng Soc. 28 Kan. 424; Tracy x. Gunn,

29 Kan. 510; Reynolds v. Fleming, 30 Kan.

106, 46 Am. Rep. 86, 1 Pac. 61; Williams x. Moorehead, 33 Kan. 618, 7 Fac. 226.

When a judgment is sought to be set aside because of some defect in the affi¬ davit of publication, the constant practice in Kansas is to do so by motion filed in the original case.

Harrison x. Beard, 30 Kan. 532, 2 Pac.

632; Hanson x. Wolcott, 19 Kan. 207; Washburn v. Buchanan, 52 Kan. 417, 34 Pac. 1049; Grouch x. Martin, 47 Kan. 313,

27 Pac. 985; Long v. Fife, 45 Kan. 271, 25 Pac. 594.

Under the Kansas practice such a judg¬ ment 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 x. Gray, 19 Kan. 458, 27 Am. Rep.

149; McNeill x. Edie, 24 Kan. 110; Kay x. Walter, 28 Kan. 115; Perry v. St. Joseph do W. R. Co. 29 Kan. 424; Brinkman x. 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 x. Hurd,

29 Mich. 44; Caruthers x. Humphrey, 12 Mich. 270; Whetstone v. Coffey, 48 Tex.

270; Mills v. Heaton, 52 Iowa, 215, 2 N. W.

1112; Newton x. McKay, 30 Mich. 380; Parker v. Dacres, 2 Wash. Terr. 439, 7 Pac.

893; Jones, Mortg. § 1678; Payne x. Long- Bell Lumber Co. 9 Okla. 683, 60 Pac. 235.

Mr. Justice Brewer delivered the opin¬ ion of the court:

The supreme court of Oklahoma was of opinion that the affidavit for service by pub¬ lication was wholly insufficient in that it alleged the nonresidence of defendants sim¬ ply 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 sub¬ sequent proceedings were, as to her, abso¬ lutely void. On the other hand, it is con¬ tended 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 the territory;” that the affidavit for publi¬ cation stated positively such inability ; that, therefore, it was strictly within the statute, and authorized the publication of notice; that the publication was duly made, the defendants were thereby brought into court, and the judgment and all subsequent pro¬ ceedings were regular and valid. It may well be doubted whether this contention of appellants can be sustained, at least in cases like this of direct, and not collateral, attack, even if the inability to obtain per¬ sonal service by the exercise of due dili¬ gence is a distinctive ground for service by publication. It would seem that the facts tending to *3 how such diligence should be[Ii$.

99

H8-H8

Supreme Court of the United States.

Oct. Term,

disclosed, and that an affidavit merely al¬ leging inability was one of a conclusion of law, and not Of facts. McDonald v. Cooper, 32 Fed. 745; Carleton v. Carleton, 85 N. Y. 313; McCracken v. Flanagan, 127 N. Y. 493, 28 N. E. 385; Ricketson v. Richardson, 26 Cal. 149; Braly v. Seaman, 30 Cal. 610; Kahn v. Matthai, 115 Cal. 689, 47 Pac. 698; Little v. Chambers, 27 Iowa, 522; Thompson v. Shiawassee County Circuit Judge, 54 Mich. 236, 19 N. W. 967 ; Alderson v. Mar¬ shall, 7 Mont. 288, 16 Pac. 576. Nor is this inability shown by the mere fact that a summons issued to the sheriff of the county in which the land is situated is returned not served, for in cases of this kind, by i 3934, a summons can be issued to and served in any county of the territory.

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 ap¬ proved 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 v^as 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 con¬ trol the measure of relief. Even if the publication had been founded upon an affi¬ davit perfect in form, and the decree and all proceedings had been in strict conform¬ ity to the statute, yet, by § 3955, the de¬ fendant 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 af¬ fidavit, yet the appellee comes into a court of equity seeking relief against the fore¬ closure of a mortgage. In such a case there are almost always certain conditions of re¬ lief. 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 pavment (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 re¬ demption 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, ot 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 there¬ fore her rights, which, so far as appears, Are only the rights of redemption, have not been cut off. Harding, as the grantee of 100

the purchaser at the foreclosure sale, stand* in the shoes of the mortgagee. Bryan v. Brasius, 162 U. S. 415, 40 L. ed. 1022, 16 Sup. Ct. Bep. 803. As shown by the opin¬ ion in that case and cases cited therein, a mortgagee who enters into possession, not forcibly, but peacefully and under the au¬ thority of a foreclosure proceeding, cannot be dispossessed by the mortgagor, or one claiming under him, so long as the mort¬ gage remains unpaid.

Under § 4498 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 proceeding* which are de¬ fective, for, if not defective, by S 3955 a purchaser in good faith has title, and can¬ not be Evicted upon any terms.

The decree of the Supreme Court of Okla¬ homa will be reversed and the case remand¬ ed to that court, with instructions to set aside the order of the trial court, and to direct the entry of one which, without dis¬ turbing the possession of Harding, will give to the appellee the right to appear, plead, and make such defense as, under the facta of the case and the principles of equity, she is entitled to.