erty under the mortgage as of its date, and so did not constitute a preference voidable by the trustee, although the other elements constituting a preference were present. Many decisions of the Supreme Court of Vermont are cited to this effect. It will be observed, also, that the provisions of the state insolvency law in regard to void and voidable preferences and transfers were identical with similar provisions of the bankruptcy act of 1867. Gilbert v. Vail, 60 Vermont, 261.

Under that law it was held that the assignee in bankruptcy stood in the shoes of the bankrupt, and that "except where, within a prescribed period before the commencement of proceedings in bankruptcy, an attachment has been sued out against the property of the bankrupt, or where his disposition of his property was, under the statute, fraudulent and void, his assignees take his real and personal estate, subject to all equities, liens and encumbrances thereon, whether created by his act or by operation of law." Yeatman v. Savings Institution, 95 U. S. 764. See also Stewart v. Platt, 101 U. S. 731; Hauselt v. Harrison, 105 U. S. 401. Under the present bankrupt act, the trustee takes the property of the bankrupt, in cases unaffected by fraud, in the same plight and condition that the bankrupt himself held it, and subject to all the equities impressed upon it in the hands of the bankrupt, except in cases where there has been a conveyance or encumbrance of the property which is void as against the trustee by some positive provision of the act. In re Garcewich, 115 Fed. Rep. 87, 89, and cases cited.

It is true that in the case in 95 U. S. 764, the savings institution had a special property in the certificates which were the subject of dispute, and had possession of them at the time of the bankruptcy proceedings, and it was held that the institution was not bound to return them, either to the bankrupt, the receiver or the assignee in bankruptcy, prior to the time of the payment of the debt for which the certificate was held. So the state court held in this case, where the defendant took possession under the circumstances detailed, by virtue of his mort

gage, and where he had the legal title to the property mortgaged, after condition broken, that the possession thus taken related back to the date of the giving of the mortgage, and in thus enforcing his lien there was not a violation of any of the provisions of the bankruptcy act.

In Wilson v. Nelson, 183 U. S. 191, it was held that the bankrupt had committed an act of bankruptcy, within the meaning of the bankrupt law, by failing, for at least five days before a sale on the execution issued upon the judgment recovered, to vacate or discharge the judgment, or to file a voluntary petition in bankruptcy. The judgment and execution were held to have been such a preference, "suffered or permitted" by the bankrupt, as to amount to a violation of the bankrupt act. Although the judgment was entered upon the power of attorney given years before the passage of the bankrupt act, it was nevertheless regarded as "suffering or permitting" a preference, within that act. This is not such a case. As we have said, there is no finding that the defendant had reasonable cause to believe that by the change of possession it was intended to give a preference. As the state court has said, it was rather a recognition of what was regarded as a right under the previous agreement contained in the mortgage.

Nor does the existence of the Ryan attachment, or the chattel mortgage of March 5, 1900, executed by the bankrupt and delivered to the defendant and by him assigned on the twentythird of March, 1900, to the bank, create any greater right or title in the trustee than he otherwise would have. The trustee moved under section 67f, on notice to the defendant, for an order that the right or lien under the Ryan attachment should be preserved, so that the same might pass to the trustee for the benefit of the estate, as provided for in that section. This was denied. And unless such permission had been granted, the lien of the attachment was not preserved by the act, but, on the contrary, it was dissolved under section 67c.

The mortgage assigned to the bank, and the attachment

obtained by Ryan having been dissolved by the bankrupt proceedings, the defendant's rights under his mortgage of April 15, 1891, stood the same as though there had been no subsequent mortgage given, or attachment levied. This is the view taken by the state court of the effect of the dissolution of the mortgage and attachment liens under the bankrupt act, and we think it is the correct one. It is stated in the opinion of the state court as follows:

"It is urged that with the annulment of the attachment, the property affected by it passed to the trustee as a part of the estate of the bankrupt under the express provisions of section 67f. There would be more force in this contention were it not for the provision that, by order of the court, an attachment lien may be preserved for the benefit of the estate. If there is no other lien on the property, there can be no occasion for such order; for on the dissolution of the attachment, the property, unless exempt, would pass to the trustee anyway. It is only when the property for some reason may not otherwise pass to the trustee as a part of the estate that such order is necessary. We think such is the purpose of that provision, and that unless the lien is preserved, the property, as in the case at bar, may be held upon some other lien and not pass to the trustee. In re Sentenne & Green Co., 120 Fed. Rep. 436."

We think the judgment of the Supreme Court of Vermont was right, and it is

Affirmed.

1

193 U. S.

Argument for Plaintiff in Error.

OKLAHOMA CITY v. MCMASTER.

ERROR TO THE SUPREME COURT OF THE TERRITORY OF

OKLAHOMA.

No. 137. Argued January 18, 19, 1905.-Decided February 20, 1905.

The review by this court of final judgments in civil cases of the Supreme Court of the Territory of Oklahoma is not controlled by the act of 1874 in regard to territorial courts but by § 9 of the act of May 2, 1890, 26 Stat. 81, 85, providing the territorial government for Oklahoma, and in an action at law where a jury has been waived the review is by writ of error as in the case of a similar judgment of a Circuit Court, and not by appeal. Where no formal judgment has been entered the plea of res judicata has no foundation; neither the verdict of a jury nor the findings of a court even though in a prior action, upon the precise point involved in a subsequent action and between the same parties constitutes a bar. There was no permit for entry of lands in Oklahoma for town sites under the act of 1889 or until the town site act was passed May 14, 1890, and an agreement among a portion of the people who on April 22, 1889, chose lots upon a projected town site did not and could not vest an absolute title in persons selecting lots or make a plat or map of town final or conclusive; but the selectors took their lots subject to changes and conditions that might obtain-in this case as to location of streetswhen the township patent was issued to, and a map finally approved by, the township trustees under the act of May 14, 1890.

THE facts are stated in the opinion.

Mr. Frank Dale, with whom Mr. S. A. Magginnis, Mr. C. Porter Johnson and Mr. A. G. C. Bierer were on the brief, for plaintiff in error:

The so-called findings and judgment of the District Court of Canadian County clearly did not constitute a judgment that could be set up as res judicata. Child v. Morgan, 52 N. W. Rep. 1127; Auld v. Smith, 23 Kansas, 65; Massing v. Ames, 36 Wisconsin, 409; Taylor v. Runyan, 3 Iowa, 474, 480; Whilewell v. Hoover, 3 Michigan, 84; Lincoln v. Cross, 11 Wisconsin, 94; §5, 24 Am. & Eng. Ency. of Law, 2d ed., 717; Masterman v. Masterman, 51 Pac. Rep. 277; Gordon v. KenVOL. CXCVI-34

Argument for Defendant in Error.

196 U. S.

nedy, 36 Iowa, 167; Talesky v. State Ins. Co., 70 N. W. Rep. 187. McMaster did not acquire a vested right in the ground in the streets of Oklahoma City. The Beamer Case, 3 Oklahoma, 652, was rightly decided and the cases cited in the opinion of the Supreme Court of the Territory do not sustain the decision.

The power to correct the survey of Oklahoma town site vested exclusively in the political and not the judicial department of the Government. McDaid v. Oklahoma Territory, 150 U. S. 209, 220; Knight v. United States Land Ass'n, 142 U. S. 161; town site act of May 14, 1890, § 1; §§ 441, 443, 2478, Rev. Stat.

The writ of error and appeal were both taken to this court as a matter of precaution; as to which is proper practice and the effect of findings of the court below, see Stringfellow v. Cain, 99 U. S. 610; Cannon v. Pratt, 99 U. S. 619; cases cited by defendant in error; Gray v. Howe, 108 U. S. 12; Salina Stock Co. v. Irrigation Co., 163 U. S. 190; Teckendorf v. Teckendorf, 171 U. S. 686; United States v. Hooe, 1 Cranch, 318; Davis v. Fredericks, 104 U. S. 618; Thompson v. Ferry, 180 U. S. 484; Stone v. United States, 164 U. S. 380; Dickinson v. Bank, 16 Wall. 250; Insurance Co. v. Tweed, 7 Wall. 44; Haws v. Victoria Copper Mining Co., 160 U. S. 303, 313; Gildersleeve v. New Mexico Mining Co., 161 U. S. 573.

Mr. Chester Howe, with whom Mr. Francis J. Kearful was on the brief, for defendant in error:

cannot be in this court both Either one proceeding or the Hurst v. Hollingsworth, 94

There being but one cause it by writ of error and by appeal. other will have to be dismissed. U. S. 111; S. C., 100 U. S. 100; Plymouth Mining Co. v. Amador Canal Co., 118 U. S. 264; Files v. Brown, 124 Fed. Rep. 133; Lockman v. Long, 132 Fed. Rep. 1. The writ of error should be dismissed. Stringfellow v. Cain, 99 U. S. 610; Hecht v. Boughton, 105 U. S. 235; Story v. Black, 119 U. S. 235; Idaho Land Co. v. Bradbury, 132 U. S. 509, 514. The judgment