The veyed and held for the benefit of all. rights and interests acquired in the property begin with the date of the mortgage, and not from the maturity or assignment of the notes, or the time when the cause of action arises. There can be no priority of rights in favor of one against the others, as the mortgage is one. The simple assignment of the notes does not change the mortgage and make it any less security for any of the notes than it was before the assignment. The mortgage security in following the transfer of the notes as an incident does not pass by the assignment any farther than it was an incident at the time the transfer was made. The holders of the notes, therefore, stand eaquile jure, and consequently are entitled to participate ratably in the fund derived from the security, if there be not enough to pay all." See, also, Nashville Trust Co. v. Smythe, 94 Tenn. 513, 29 S. W. 903, 27 L. R. A. 663, 45 Am. St. Rep. 748, in which a number of authorities are cited, and which contains a lengthy discussion of the questions involved. # * But these authorities do not apply to the facts of this case. This is not a conflict between two assignees, but is a conflict between the assignee of the first note and the receiver holding the second note, and as such standing in the shoes of Arnold Mercantile Company. In this case the second note was retained by the Arnold Mercantile Company, and, as between it and Warren, its assignee, equity would require that its assignee be first paid out of the mortgage fund. "An assignee of the mortgage with part of the debt is generally entitled to payment in preference to the mortgagee who retains one of the notes; while, as between different assignees of mortgage bonds or notes, priority of assignment generally gives no preference, though the cases are not in harmony. Where a holder of a mortgage assigns a part of it, although he warrants only the existence of the debt at the time of the transfer, it would be contrary to good faith to permit him, after receiving the money for this part of the claim, to come into competition with his assignee, if the property prove insufficient to pay the claims of both. Unless the intention be plainly declared on the face of the assignment that the assignee is to share pro rata in the security with the assignor, the equitable construction of it is that it must in the first place be applied for the payment of the part of the debt which was assigned." Jones on Mortgages (6th Ed.) § 1701. See Bryant v. Damon, 6 Gray (Mass.) 564; Knight v. Ray, 75 Ala. 383; Parkhurst v. Watertown Steam Engine Co., 107 Ind. 594, 8 N. E. 635; Cullum v. Erwin, 4 Ala. 452. "When the mortgagee assigns one or more of the notes, and retains the remainder of a series, it is generally held that the assignee is entitled to a priority of to the note or notes so transferred; and this rule operates without regard to the order in which the notes held by the two parties mature." Pomeroy, Eq. Jurisprudence (3d Ed.) § 1203. Alden v. White, 32 Ind. App. 671, 66 N. E. 509, 102 Am. St. Rep. 261; Whitehead v. Fisher, 64 Tex. 639; Douglass v. Blount, 22 Tex., Civ. App. 493, 55 S. W. 526. The syllabus in Anderson v. Sharp, 44 Ohio St. 260, 6 N. E. 900, is as follows: "K. executed and delivered to T. three notes, payable to T.'s order, due in one, two, and three years from date, and a mortgage to secure their payment. Before either note became due, T. indorsed the notes, waiving demand and notice, and delivered both to A. with an assignment of the mortgage. The note maturing in one year not being paid when due was put in judgment against K. as maker and T. as indorser. K. being insolvent, T. paid the judgment. He then commenced suit to foreclose the mortgage, claiming the benefit of the mortgage security and a lien prior to the lien of A., who held the remaining two notes, which were then past due. A., by answer and cross-petition, alleged facts showing T.'s liability as indorser upon the two notes, that K. was insolvent, that the lands would prove insufficient to satisfy the whole mortgage debt, claiming priority of lien, praying foreclosure and full relief. Later S., on his motion, became plaintiff and filed supplemental petition averring purchase from T., and assignment of all his rights and interest in the mortgage and as plaintiff in the suit, and claiming priority of lien. The land was sold. The sum realized was not sufficient to satisfy the whole indebtedness. Held, that A. was entitled to payment in full from the proceeds before application of the money to the claim of S." And the same rule applies where a person to whom all of a series of notes have been assigned assigns one of the series to a third person. Jenkins v.. Hawkins, 34 W. Va. 799, 12 S. E. 1090. The reason the assignee is to be preferred is founded on the plainest principle of equity. When two notes are assigned to different persons, they are both presumed to have paid value, and they must share equally in the proceeds of the mortgaged property in order to preserve the equality which is equity. But to apply the same rule between the mortgagee and a person to whom he had transferred one of the notes would lead to inequality. For illustration, say that the mortgagee holds two notes for $1,000 each. He assigns one of them for value. The property securing their payment only brings $1,000, or enough to pay one note. If the mortgagee shares in the proceeds he will get out of the debt $1,500, the $1,000 he received for the first note and the $500 he receives from the proceeds of the mortgaged property, while the assignee for half the debt only re ceive more than if he had kept both notes. [only the debtor's rights, and consequently This is not right. The same illustration applies to the case of a person to whom all of a series of notes has been assigned and who afterwards assigns one of the series. are affected with all claims, liens, and equities, which would affect the debtor if he himself were asserting his interest in the property. Mitford v. Mitford, 9 Ves. 87; Sherrington v. Yates, 12 M. & W. 855; Brown v. Heathcote, 1 Atk. 160; Winsor v. McLellan, 2 Story, 492 [Fed. Cas. No. 17,887]; Fletcher v. Morey, 2 Story, 555 [Fed. Cas. No. 4,864]; Mitchell v. Winslow, 2 Story, 630 [Fed. Cas. No. 9,673]; In re Griffiths, 1 Low. 431 [Fed. Cas. No. 3,540]; In re Dow, 6 N. B. R. 10 [Fed. Cas. No. 2,955]; Coggeshall v. Potter, 1 Holmes, 75 [Fed. Cas. No. 2,955]; Johnson v. Patterson, 2 Woods, 443 [Fed. Cas. No. 7,403]; Goddard v. Weaver, 1 Woods, 257, 260 [Fed. Cas. No. 5,495]; In re Collins, 12 N. B. R. 379 [Fed. Cas. No. 3,007]; Platt v. Preston [D. C.] 3 Fed. 394; Yeatman v. Savings Institution, 95 U. S. 764 [24 L. Ed. 589]; Stewart v. Platt, 101 U. S. 731, 739 [25 L. Ed. 815]; Hauselt v. Harrison, 105 U. S. 401, 406 [26 L. Ed. 1075]; Adams v. Collier, 122 U. S. 382 [7 Sup. Ct. 1208, 30 L. Ed. 1207]; Brown v. Brabb, 67 Mich. 17, 22-32 [34 N. W. 403, 11 Am. St. Rep. 596]; Jones on Chattel Mortgages, § 241." In Miller v. Savage, 60 N. J. Eq. 204, 46 Atl. 632, the court said: "His (the receiver's) title to the property of the debtor is exactly the same as the title of the debtor himself at the moment when it goes into the receiver's hands." The general principle is sustained by the following cases: Kittredge v. Osgood, 161 Mass. 384, 37 N. E. 369; Cramer v. Iler, 63 Kan. 579, 66 Pac. 617; Reeves v. Pierce, 64 Kan. 502, 67 Pac. 1108; Smith v. Sioux City Nursery & Seed Co., 109 Iowa, 51, 79 N. W. 457; Gillam v. Nussbaum, 95 Ill. App. 277; Link Belt Machinery Co. v. Hughes, 174 Ill. 155, 51 N. E. 179; Arnold v. Weimer, 40 Neb. 216, 58 N. W. 709; New Jersey Southern Railroad Co. v. Railroad Commissioners, 41 N. J. Law, 235; Commer [2] The receiver stands in the shoes of the Arnold Mercantile Company. His right is not greater than theirs. If the plaintiff had priority as against the Arnold Mercantile Company, he has the same right against the receiver. In American Trust & Savings Bank v. McGettingan, Receiver, 152 Ind. 582, 52 N. E. 793, 71 Am. St. Rep. 345, the court said: "It is well established that, when a court takes possession of the property of an insolvent corporation, and appoints a receiver, such receiver 'is the arm of the court,' by which it administers the trust for the benefit of the creditors. But the court receives such property impressed with all existing rights and equities of creditors, and the relative rank of claims, and the standing of liens remains unaffected by a receivership. Every legal and equitable lien upon the property of the corporation is preserved, with the power of enforcing it. Gluck v. Becker, Rec. § 6; Am. & Eng. Enc. of Law, p. 407; Woerishoffer v. North River, etc., Co., 99 N. Y. 398-402, 2 N. E. 407; Hubbard v. Hamilton Bank, 7 Metc. (Mass.) 340; Minchin v. Nat. Bank, 36 N. J. Eq. 436; Snow v. Winslow, 54 Iowa, 200, 6 N. W. 191; Hale v. Frost, 99 U. S. 389 [25 L. Ed. 419]. And it is as much the duty of the receiver, in administering an estate, to protect valid preferences and priorities, as it is to make a just distribution among the general creditors." In Nix v. Ellis, 118 Ga. 345, 45 S. E. 404, 98 Am. St. Rep. 111, the court said: "Assignees, trustees in bankruptcy, and receivers are not purchasers for value, and take the estate of an insolvent subject to all set-offs, liens, and incumbrances in the plight existing at the date to which his title is ultimately referred. Powers v. Central | cial Publishing Co. v. Beckwith, 167 N. Y. Bank, 18 Ga. 658; Georgia Seed Co. v. Tal- 329, 60, N. E. 642; Battery Park Bank v. mage, 96 Ga. 255, 22 S. E. 1001." In Ryder Western Carolina Bank, 127 N. C. 432, 37 S. v. Ryder, 19 R. I. 188, 32 Atl. 919, in a suit E. 461; Pelletier v. Greenville Lumber Co., against a receiver to reform a mortgage 123 N. C. 596, 31 S. E. 855, 68 Am. St. Rep. given by the firm of which he was appointed 837; Scott v. Armstrong, 146 U. S. 499, 13 receiver, the court said: "As such receiver Sup. Ct. 148, 36 L. Ed. 1059; Southern Granhe took the property of the partnership, sub-ite Co. v. Wadsworth, 115 Ala. 570, 22 South. ject to the equity of the complainant to have the mortgage reformed. We do not see that he occupies any better position with reference to the property to be included in the mortgage as reformed than that of an assignee under a general assignment for the The evidence shows that the plaintiff rebenefit of creditors in respect to property ceived the note sued upon as collateral seconveyed by an unrecorded mortgage. * curity for accounts of other indebtedness of We understand it to be the established doc- the Arnold Mercantile Company, which he trine, both in England and in this country, had in his hands for collection, and in conthat assignees in insolvency or bankruptcy, sideration of the note that he forebore to whose rights as representing the general bring attachment to collect the indebtedness. creditors are certainly as great as those of a This was a valuable consideration, and enreceiver of a partnership, in the absence of titled him to all the rights of any other fraud and of statutory regulations, take | holder of a note for value. Barton v. Fergu 157; Crine v. Davis, 68 Ga. 138; Shinkle v. Knoll, 99 Ill. App. 274; Brownson v. Roy, 133 Mich. 617, 95 N. W. 710; Avery v. Ladd, 26 Or. 579, 38 Pac. 1088; Kidder v. Beavers, 33 Wash. 635, 74 Pac. 819. son, 1 Ind. T. 263, 37 S. W. 49; Farmers' National Bank v. McCall, 25 Okl. 600, 106 Pac. 866, 26 L. R. A. (N. S.) 217, and authorities there cited. It follows that the judgment of the lower court was correct, and should be affirmed. PER CURIAM. Adopted in whole. (33 Okl. 23) LYNCH v. HARRIS. ly enrolled citizen by blood of the Cherokee tribe of Indians, and defendant is an enrolled citizen of the Cherokee Nation as a Cherokee freedman. The land in controversy is located in Rogers county, and formerly constituted a part of the tribal lands of the Cherokee tribe of Indians. On March 28, 1905, defendant by his mother and natural guardian, Martha Martin, who is also an enrolled citizen of the Creek Nation, selected the land in controversy as a portion of plaintiff's allotment, to which she was entitled as a mem (Supreme Court of Oklahoma. May 14, 1912.) ber of the Cherokee tribe of Indians. On (Syllabus by the Court.) INDIANS (§ 13*)-INDIAN LANDS ALLOT MENT. By reason of section 22 of an act of Congress, approved July 1, 1902 (chapter 1375, 32 U. S. Stat. at L. p. 716; 1 Kappler's Indian Affairs, Laws and Treaties, p. 789), the Commissioner to the Five Civilized Tribes, upon motion made before him, and the Secretary of the Interior, on appeal from an order of said Commission, have power at any time be fore the issuance of patent to an allottee of the Cherokee tribe of Indians, upon notice to such allottee and after hearing, to cancel and set aside a judgment of the Commissioner in a contest awarding to the allottee as contestant the lands allotted to him, when such judgment was procured without service of notice of contest upon the contestee, and without an opportunity given to the contestee to be heard, but upon a false and fraudulent affidavit made by the contestant or one acting for him, showing that such service had been made. [Ed. Note. For other cases, see Indians, Cent. Dig. § 30; Dec. Dig. 13.*] April 22, 1905, plaintiff, by his mother and natural guardian, instituted contest proceedings against Elzira Lynch for the land in controversy. This proceeding was instituted before the Commissioner to the Five Civilized Tribes on the ground that plaintiff was the owner of the improvements and in possession of the land at the time the same was selected by defendant as a part of her allotment. On September 19, 1905, that contest was first tried before the Commissioner to the Five Civilized Tribes. The evidence taken at that trial is in the record, and constitutes one of the exhibits to plaintiff's evidence. At the trial, the record shows that defendant, who was contestee in the proceeding before the Commissioner, appeared by his stepfather, Fred Martin, and an attorney by the name of J. D. Cox. The stepfather, Fred Martin, is not a citizen of the Cherokee Nation. The Commissioner to the Five Civi Error from District Court, Rogers Coun- lized Tribes, upon the evidence introduced ty; T. L. Brown, Judge. Action by John F. Harris, a minor, by J. B. Rutherford, guardian, against Elzira Lynch, a minor, by guardian. Judgment for plaintiff, and defendant brings error. Reversed and remanded, with directions. This case originated in the district court of Rogers county. The original plaintiff was John F. Harris, a minor, by John B. Rutherford, his guardian, who is now the defendant in error, but will hereafter be called plaintiff. The original defendant was Elzira Lynch, a minor, who is now the plaintiff in error, but will hereafter be called defendant. Plaintiff sought by his petition in the court below to have the allotment of certain lands theretofore made to defendant as a member of the Cherokee tribe of Indians declared a nullity, and that whatever title defendant may have in and to the lands described in her petition be decreed to be held by defendant in trust for plaintiff, and that a conveyance of the legal title thereto be decreed to plaintiff. The trial in the court below was to the court without the intervention of a jury. After the introduction of evidence by plaintiff, the court overruled defendant's demurrer to plaintiff's evidence, and defendant elected to stand upon his demurrer, and judgment was accordingly rendered for plaintiff as prayed for in his petition. Plaintiff is a du at the first trial, awarded to plaintiff the land in controversy. Notice of this decree of the Commissioner was mailed by registered letter to the mother of defendant by the Commissioner. Neither defendant nor any one acting for her within 30 days after the rendition of the decree in the contest took an appeal therefrom to the Commissioners of the Land Office, but on January 10, 1907, defendant filed a motion with the Commissioner to the five Civilized Tribes, asking that his decision awarding the land to plaintiff be set aside. This motion was not introduced in evidence in the court below, and the record does not contain the evidence introduced at the hearing on said motion; but the record does disclose that said motion was duly served upon plaintiff, and he had We are full notice of the hearing thereon. advised in part of the contents of said motion by the findings of the Commissioner of the Five Civilized Tribes in his order setting aside his first judgment, which was rendered on July 13, 1907. By this order the judg. ment in favor of defendant in the contest was set aside, and a new trial ordered upon the ground that plaintiff, contestee in that proceeding, by his mother had made a false return of service, and that no notice of a contest upon defendant or his mother and natural guardian, who selected the allotment for her, as prescribed by the rules of the depart- | improvements. Section 69 provides that there ment in contest matters, had ever been served; and it was found that the appearance by Fred Martin, the stepfather, and by the attorney, appearing at the contest in her behalf, was without authority or knowledge of defendant or her mother. Due notice was given to plaintiff, contestee before the Commissioner, of defendant's motion to set aside the judgment of the Commissioner, but no reply was ever filed to said motion, and the same was not resisted. After this motion to vacate and set aside the first judgment of the Commissioner had been granted and after due notice to both parties, a second rehearing in the contest was had before the Commissioner to the Five Civilized Tribes on January 21, 1908, at which time both parties appeared either both in person and by counsel, or by counsel. Upon the evidence introduced at this hearing, which is also made part of plaintiff's evidence in the court below, and a part of the record in this court, the Commissioner to the Five Civilized Tribes rendered his decision in favor of the contestee, and awarded to her the land she had theretofore allotted. After a motion for rehearing had been filed, plaintiff appealed to the Commissioners of Indian Affairs, who, on September 2, 1908, rendered a decision affirming the decision of the Commissioner to the Five Civilized Tribes. From this decision an appeal was taken by plaintiff to the Secretary of the Interior, who likewise rendered a decision affirming the decision of the Commissioner of Indian Affairs and of the Commissioner to the Five Civilized Tribes, and awarded the land in controversy to the contestee, defendant here; and it is agreed that a patent, issued by the Tribal authorities and approved by the Secretary of the Interior, has been delivered to defendant. The foregoing is an epitome of the most important facts in the record. Such other facts as are at all material to a decision of the question presented here will be stated in the opinion. Starr & Patten, of Vinita, for plaintiff in error. J. B. Rutherford, of Sapulpa, and Parker, Rider & Brown, of Vinita, for defendant in error. HAYES, J. (after stating the facts as above). Provision was made by act of Congress approved July 1, 1902 (32 U. S. Stat. at L. p. 716; 1 Indian Affairs, Laws & Treaties, p. 787), for the allotment in severalty of the lands of the Cherokee Nation or tribe of Indians to the enrolled members thereof. Section 9 of this act provides for an appraisement of all the lands belonging to the tribe. Section 11 provides that there shall be allotted to each enrolled citizen of the tribe lands equal in value to 110 acres of the average allotable lands of the nation, and in making the allotments each Indian is enti shall be no contest instituted against the se- the person having the infant in charge, and ed that title should, under the provisions of | fant or person of unsound mind, service of the act, be conveyed, the chief shall there- notice of contest is required to be made upon upon proceed to execute and deliver to the allottee a patent, conveying all the right, title, and interest of the Cherokee Nation and of all other citizens in and to the land embraced in the allottee's allotment certificate. Section 59 reads: "All conveyances shall be approved by the Secretary of the Interior, which shall serve as a relinquishment to the grantee of all the right, title, and interest of the United States in and to the lands embraced in his patent." By section 60 it is provided that the acceptance by any allottee of a patent to his allotment shall be deemed an assent to the allotment and to the conveyance of all the lands of the tribes as provided for in the act and a relinquishment of all his right and title in and to the same, except in the proceeds of lands reserved from allotment. There is no specific provision in the act that the allotment certificate shall convey any title. If it had been intended that the issuance of a certificate of allotment should operate to convey the legal title to an allotment, it would not have been provided by the foregoing sections that such right and title should be conveyed by patent, or that such patent should convey the lands embraced in the allottee's allotment certificate. Michigan Land & Lumber Co. v. Rust, 168 U. S. 589, 18 Sup. Ct. 208, 42 L. Ed. 591. Acting under section 65, supra, of the act, the Commission to the Five Civilized Tribes, under the direction and supervision of the Secretary of the Interior, promulgated rules to govern the institution and prosecution of contests before the Commission against the selection of allotments. These rules require that at least 30 days notice shall be given of all hearings before the Commission, unless by written consent an earlier day shall be agreed upon. They also require that all notices of contest or summons shall be made upon blanks prepared and supplied by the Commission; and that personal service of such notice shall be made in all cases where the party to be served is a resident of the Indian Territory. Rule 7 reads as follows: "If the person to be personally served is an infant or a person of unsound mind, service shall be made by delivering a copy of the notice and summons to the guardian of such infant or person of unsound mind, if there be one. If there be none, then by delivering a copy to the person having the infant or person of unsound mind in charge, and also to the person who made the selection for such infant or person. And if the contestee is a prisoner, convict, aged or infirm person, or a soldier or sailor of the United States on duty outside of the Indian Territory, service shall be made as herein otherwise provided, and a copy of the notice and summons shall also be served on the person who made the selection for such prisoner, convict, aged and infirm person, soldier or sailor." Under the Plaintiff's sole contention for reversal of this cause and his right to recover is based upon the foregoing two rules of the Commission, and is that each of the officers of the department before whom the contest was heard or any proceeding was taken after the expiration of 30 days after the de |