The plaintiffs in error invoke the jurisdiction of this court upon the ground stated in the 3d clause of Rev. Stat. § 709, of a 'title, right, privilege, or immunity claimed under . . . an authority exercised under the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed.' The special right claimed was a right as purchaser under the marshal's sale upon execution to a priority of payment from the goods sold as against the chattel mortgage. The claim set up in the second assignment of error was that the mortgage was invalid as against such execution for the reason that there were many more animals of the same description mingled with those upon which the mortgage was given, and that the animals covered by the mortgage were not separated from the others of the same description with which they were mingled, nor was there such separation up to the time said execution from the United States court was levied upon the property in controversy; that no lien attached to any particular animals in the herd, nor did the mortgage give a lien upon an undivided interest in the herd, and as a matter of law was invalid as against the execution; and that in giving priority to the mortgage the supreme court of Texas failed to give full force and effect to the judgment of the circuit court of the United States.
It should be borne in mind that this action was not begun until the day after the termination of the action in the Federal court by a sale of the property to Avery, the payment of the money, and apparently the return of the execution satisfied; and that the question litigated was not the legality of this particular judgment, which was admitted to be valid, but the general question whether, under the laws of Texas, an execution is valid as against a mortgage upon animals which are not identified, and not separated from others of the same description with which they are mingled. Briefly stated, the question is whether the mere fact that the plaintiff in error was a purchaser at a marshal's sale of the property entitles him to bring into this court questions under the state law with respect to the validity and priority of a chattel mortgage covering the same property or a part thereof.
There are many authorities upon the general question of the rights of purchasers at marshals' sales as against lienholders under laws of the several states, from which the true rule may be deduced. The question is analogous to the one decided at the last term of this court in Blackburn v. Portland Gold Min. Co. 175 U.S. 571, 44 L. ed. 276, 20 Sup. Ct. Rep. 222 and De Lamar's Nevada Gold Min. Co. v. Nesbitt, 177 U.S. 525, 44 L. ed. 873, 20 Sup. Ct. Rep. 715, to the effect that the mere fact that parties claim adversely to each other under the mining laws or under patents of the United States do not entitle them to a writ of error from this court, unless there be a question made as to the meaning and construction of a Federal statute, or of an authority exercised under the United States.
Of the cases bearing more directly upon the question here involved of the relations of a purchaser under a marshal's sale to others claiming the same property, the earliest is that of Collier v. Stanbrough, 6 How. 14, 12 l. ed. 324. Collier was the purchaser under a marshal's sale upon execution against one David Stanbrough of certain personal property which was claimed by Josiah Stanbrough, the defendant, who insisted that the property was not legally seized or levied upon, and that it was not legally appraised or advertised as required by law. Jurisdiction under the writ of error to the supreme court of Louisiana was sustained upon the obvious ground that the sale by the marshal was directly attacked, and the invalidity of plaintiff's title set up as a defense.
In Erwin v. Lowry, 7 How. 172, 12 L. ed. 655, Erwin was the purchaser at a marshal's sale of certain land and negroes, and was sued by Lowry, who claimed as curator of the estate to which the property belonged. The question was the same as that in Collier v. Stanbrough, namely, whether the marshal's deed to Erwin was void for the reason that it was not supported by a lawful judgment, or for want of compliance with any legal requirement in conduction the seizure and sale. The jurisdiction was also sustained in this case.
