Opinion of the Court.

every respect to deal with the mortgaged premises as owner so long as he is permitted to remain in possession, and so long as it is understood and held that every person taking under him, takes subject to all the rights of the mortgagee, unimpaired and unaffected. Nor is he liable for rents, and the mortgagee must recover the possession by regular entry by suit before he can treat the mortgagor, or the person holding under him, as a trespasser." 4 Kent Com. 157. See also American Bridge Company v. Heidelbach, 94 U. S. 798; Clarke v. Curtis, 1 Grattan, 289; Bank of Ogdensburg v. Arnold, 5 Paige Ch. 38; Hunter v. Iays, 7 Biss. 362; Souter v. La Crosse Railway, Woolworth C. C. 80, 85; Foster v. Rhodes, 10 Bank. Reg. 523. The authorities cited show that, as the defendant in error took no effectual steps to gain possession of the mortgaged premises, he is not entitled to the rents and profits while they were occupied by the owner of the equity of redemption.

The case against the right of the defendant in error to recover in this case the rents and profits received by the owner of the equity of redemption is strengthened by section 323, chapter 4, title 1, General Laws of Oregon, 1843–1872, which declares that "a mortgage of real property shall not be deemed a conveyance so as to enable the owner of the mortgage to re cover possession of the real property without a foreclosure and sale according to law."

This provision of the statute cuts up by the roots the doctrine of Moss v. Gallimore, ubi supra, and gives effect to the view of the American courts of equity that a mortgage is a mere security for a debt, and establishes absolutely the rule that the mortgagee is not entitled to the rents and profits until he gets possession under a decree of foreclosure. For if a mortgage is not a conveyance, and the mortgagee is not entitled to possession, his claim to the rents is without support. This is recognized by the Supreme Court of Oregon as the effect of a mortgage in that State. In Besser v. Hawthorn, 3 Oregon, 129 at 133, it was declared: "Our system has so changed this class of contracts that the mortgagor retains the right of possession and the legal title." See, also, Anderson v. Baxter, 4 Oregon, 105; Roberts v. Sutherlin, Id. 219.

Opinion of the Court.

The case of the defendant in error cannot be aided by the stipulation in the defeasance of August 19th, 1874, exacted by the mortgagee, that Goldsmith and Teal would, upon default in the payment of the note secured by the mortgage, deliver to Hewett, the tastee, the possession of the mortgaged premises. That contract was contrary to the public policy of the State of Oregon, as expressed in the statute just cited, and was not binding on the mortgagor or his vendee, and, although not expressly prohibited by law, yet, like all contracts opposed to the public policy of the State, it cannot be enforced. Railroad Company v. Lockwood,. 17 Wall. 357; Bank of Kentucky v. Adams Express Company, 93 U. S. 174; Marshall v. Baltimore & Ohio Railroad Company, 16 How. 314; Meguire v. Corwine, 101 U. S. 108.

In any view of the case, we are of opinion that the defendant in error was not entitled to receive the rents sued for in this action. As this conclusion takes away the foundation of the suit, it is unnecessary to notice other assignments of error. The judgment of the Circuit Court is reversed, and the cause remanded to that court for further proceedings in conformity with this opinion.

BÖRS v. PRESTON.

IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

Argued January 4th, 1884.-Decided April 7th, 1884.

Consul-Constitutional Law -- Evidence.

In cases coming from the Circuit Courts, this court will determine from its own inspection of the record, whether they are of the class excluded by statute from the cognizance of those courts; this, although the question of jurisdiction is not raised by the parties.

The constitutional grant of original jurisdiction to this court of all cases affecting consuls, does not prevent Congress from conferring original jurisdiction, in such cases, also, upon the subordinate courts of the Union.

The jurisdiction of the Circuit Courts of the United States of suits by citizens

Statement of Facts.

against aliens, is not defeated by the fact that the defendant is the consul of a foreign government.

The alienage of a defendant is not to be presumed from the mere fact that he is the consul, in this country, of a foreign governinent.

This action was brought in the Circuit Court of the United States for the Southern District of New York. The plaintiff below, Preston, was a citizen of that State, while the defendant was the consul at the port of New York, for the Kingdoms of Norway and Sweden.

The object of the action was to recover damages for the alleged unlawful conversion by defendant, to his own use, of certain articles of merchandise. The answer denied the material allegations of the complaint, and, in addition, by way of counterclaim asked judgment against the plaintiff for cer tain sums. To the counterclaim a replication was filed, and a trial had before a jury, which resulted in a verdict in favor of plaintiff for $7,313.10. For that amount judgment was entered against the defendant. The defendant sued out this writ of error. The errors assigned with which the opinion of the court deals were the following:

"1st Assignment of error. That the plaintiff in error being before, at the time of the commencement of this suit, and ever since Consul of the Kingdoms of Norway and Sweden, he ought not, according to the Constitution and laws of the United States, to have been impleaded in the Circuit Court, but in the District Court of the United States, for the Southern District of New York, or in some of the District Courts, and that the Circuit Court had not jurisdiction of this cause, and should have directed a verdict for said defendant.

"2d Assignment of error. That judgment was given for the defendant in error against the plaintiff in error, when by the laws of the United States, the judgment ought to have been given for the plaintiff in error against the defendant in error, it being admitted that the plaintiff in error was, at the time of the transaction on the 8th of April, and continued to the trial, the Consul for Sweden and Norway, at the port of New York, whereby the Circuit Court had no jurisdiction of the cause."

Argument for Defendant in Error.

Mr. George H. Forster for plaintiff in error.

Mr. B. F. Tracy for defendant in error.-I. The Circuit Court has jurisdiction in cases of foreign consuls. Bixby v. Jansen, 6 Blatchford, 315; Graham v. Stucken, 4 Blatchford, 50; St. Luke's Hospital v. Barclay, 3 Blatchford, 259.-II. The Circuit Court acquired jurisdiction against plaintiff in error as an alien, by virtue of the undisputed allegation in the complaint, which sets forth that the defendant in error is a citizen of the State of New York, and that the plaintiff in error is consul for the Kingdom of Norway and Sweden residing in New York. A consul for a foreign country, discharging his duties in an American seaport is, in the absence of any contrary evidence, to be presumed in law to be an alien and a citizen or subject of the country which he represents. Vattell, lib. 2, c. 2, § 34; Kent, 7th ed. 49.-III. Where it is alleged by the plaintiff in his complaint as the only matter giving jurisdiction to the Circuit Court that the defendant is a foreign consul, and the defendant answers and goes to trial and raises no objection or question as to the jurisdiction of the court until after he is defeated, and the cause has been brought into this court, it will be presumed in the absence of any testimony in the record to the contrary, that the defendant was an alien; because the natural presumption of his alienage is established by his failure to assert the contrary when such an assertion would have deprived the court of jurisdiction and relieved him from the trouble and expense of litigation. Express Companys. Kountze Bro. 8 Wall. 342, at 351; Marshall v. Baltimore & Ohio Railroad Company, 16 How. 314, 329; Gassies v. Ballon, 6 Pet. 761 ; Robertson v. Cease, 97 U. S. 646; Brown v. Keene, 8 Pet. 115; Grace v. American Insurance Company, 109 U. S. 278.—IV. The assignments of error in the record do not contain any mention of a want of jurisdiction in the Circuit Court, and it may not therefore be now considered.-V. If it should be held by this court that the Circuit Court had not jurisdiction, then as this court possesses, itself, original jurisdiction in the case by virtue of an express provision in the Constitution of the United States and in the Judiciary Act, this court will, in fur

Opinion of the Court.

therance of justice, issue a venire de novo and try the cause now and here. Or, as in Robertson v. Cease, supra, leave to amend will be accorded the defendant in error, that he may distinctly set out the alienage of the plaintiff in error at the time of the commencement of the action, nunc pro tunc, and irrespective of any statute of limitations. Other points taken by the counsel related to the merits of the case.

MR. JUSTICE HARLAN delivered the opinion of the court. After reciting the facts in the above language, he continued: The assignments of error question the jurisdiction of the Circuit Court, under the Constitution and the laws of the United States, to hear and determine any suit whatever brought against the consul of a foreign government.

Some reference was made in argument to the fact that the defendant did not in the court below plead exemption, by virtue of his official character, from suit in a Circuit Court of the United States. To this it is sufficient to reply that this court must, from its own inspection of the record, determine whether a suit against a person holding the position of consul of a foreign government is excluded from the jurisdiction of the Circuit Courts. In cases of which the Circuit Courts may take cognizance only by reason of the citizenship of the parties, this court, as its decisions indicate, has, except under special circumstances, declined to express any opinion upon the merits on appeal or writ of error, where the record does not affirmatively show jurisdiction in the court below; this, because the courts of the Union, being courts of limited jurisdiction, the presumption, in every stage of the cause, is, that it is without their jurisdiction unless the contrary appears from the record. Grace v. American Insurance Company, 109 U. S. 278, 283; Robertson v. Cease, 97 U. S. 646.

Much more, therefore, will we refuse to determine on the merits, and will reverse on the point of jurisdiction, cases where the record shows affirmatively that they are of a class which the statute excludes altogether from the cognizance of Circuit Courts. If this were not so it would be in the power of the parties by negligence or design to invest those courts with