
    Babcock & Co. v. John G. Camp et al.
    
    1. A judgment of a court of competent jurisdiction, upon a question necessarily involved in tlie suit, is conclusive in a subsequent suit between the same parties depending on the same question; and in respect to this quality of conclusive effect upon parties and privies, the decrees of courts of equity, upon matters within their jurisdiction, stand on the same footing with judgments at law.
    2. The general rule that in order to make a judgment at law conclusive between the same parties or their privies in a subsequent suit, the matter attempted to . be disputed in the subsequent suit must have been put directly in issue by the pleadings in the first, has no proper application where the first suit was in chancery, involving the taking of an account betw'een numerous parties occupying various relations to each other, and the adjustment of many and complicated claims between them, and in which many of the claims of the parties respectively must of necessity be made and contested orally before the master, and on argument of exceptions to his conclusions; and where it is appa rent, from the whole record of the first suit, that the matter in dispute in the subsequent suit might have been contested, and must have been passed upon by the court in the first, the parties are concluded by the former adjudication.
    Civil Action. Reserved in the district court of Erie county.
    The plaintiffs, Babcock & Co., claiming, as the vendees of one Theophilus Belden, to be the owners in equity of several hundred acres of land, situate in Oxford township, Erie county, and which, for convenience, are designated the “ Oxford lands,” on the 14th of January, 1857, filed their petition, in the nature of a bill in equity, against John G. Camp, R. J. Gibbs, W. L. Barnes, Willard M. and Onessimus M. Jefferson, Charles N. Wright, and George Lewis, Robert Dalzell and James C. Lewis, being of the firm of Lewis, Dalzell & Co.
    The objects sought by the plaintiffs’ petition were, to have the title to said Oxford lands adjudged to be in themselves, Babcock & Co., and to set aside and annul a deed of trust of .said lands, with a power of sale therein, which had been executed by their vendor, Belden, prior to their own purchase of said lands, and also certain sales and conveyances which had been made under color of authority conferred by the power of sale embodied in the deed of trust.
    A judgment in the case having been rendered in the common pleas, the case was appealed to the district court. In the district court, at its April term, 1857, Joseph Moreau and Egbert Scudder, constituting the firm of Moreau & Scuddcr, who claimed title to the. same lands under a mortgage to them by Belden — who is the common source of title to all the claimants — executed subsequent to the said deed of trust, but prior to the conveyance to the plaintiff^, were, on their own application, also made parties defendant; and to the order allowing them to be made parties, the plaintiffs excepted.
    The district court referred the case for trial to a referee; who took testimony, and reported his findings of law and of fact. To the report and findings of the referee numerous exceptions were filed by different parties ; and the case was thereupon reserved for decision here.
    The facts of the case, appearing in the pleadings, evidence, and the findings of the referee, and the relations and claims of the numerous parties connected with the case, and growing out of the transactions which it involves, are somewhat complicated ; but, in so far as it is deemed necessary to state them, in order to afford an understanding of the questions required to be passed on in deciding the case, they are substantially these:
    In the year 1849, Theophilus Belden, being the owner of the aforementioned Oxford lands, entered into partnership with one John A. Graham, under the firm name of Graham & Belden, in a mercantile and distillery business, at Sandusky. For the purpose of their intended business, they purchased from one William S. King a parcel of real estate, situate in the suburbs of Sandusky, and known in these proceedings as the •“ distillery property.” A deed of conveyance for this property was made by King to Graham; and this “ distillery property,” and also the “ Oxford lands,” were put into the firm as partnership assets. This distillery property was bought on credit; Grfiham & Belden agreeing to-pay for it to' King the sum of $10,000, and also assuming, in addition, the payment of certain mortgage incumbrances upon the property, one in favor of William McCartney,- and another in favor of Henry Ward; and for which King, their vendor, was personally liable, amounting in all to some five or six thousand dollars. Thus, at the outset of their partnership, Graham & Belden were the owners of the Oxford lands and of the distillery property, but in debt to King for the latter $10,000; and also under obligation to him to pay off and save him harmless from the mortgage incumbrances thereon, amounting to some five or six thousand dollars more.
    King, having taken no mortgage or other security aside from the personal obligation of his vendees, soon became apprehensive as to either the ability or disposition, or both, of his vendees, Graham & Belden, to meet their obligations to him, and, on the 15th of June, 1849, he filed his bill in chaneery against them, asserting his vendor’s lien on the distillery property, and seeking to enforce the discharge of the mortgage liens assumed by, and the payment to him of the purchase money due from, Graham & Belden. A protracted litigation ensued between the parties; which is known- in these proceedings as the “King suit,” and which terminated in a final decree of the district court of Erie county at its April term, 1855, and a transcript of the record of which is made a part of the report of the referee in this case.
    Pending the litigation of the “ King suit,” and on the 6th of March, 185-0, Graham & Belden, being anxious to prevent the foreclosure of the Ward and McCartney mortgages and the sale of the distillery property, made arrangements to borrow of Barnes & Gibbs tbe sum of $10,000, and for that purpose entered into the following agreement with them, which is made a part of the referee’s report herein, viz:
    Barnes & Gibbs agree to purchase and hold the said McCartney and Ward mortgages, for one year from that date, without collection. They also agreed to advance to Graham & Belden, in addition, $3400 39, less the interest, to be paid within sixty days. To secure-the payment of this sum thus loaned and advanced, and to save the said Barnes & Gibbs from all loss and damage, Graham & Belden agree, first, to give to Barnes & Gibbs a deed of conveyance of the Oxford lands, described in said agreement, in trust. And the contract recites, that “ it is stipulated, in said deed of trust, that said first party may assign the same, or convey the same premises to another party, for the purpose of raising the money necessary to purchase said mortgages, and to make said advances ; and that said first party, at the expiration of one year, or their assigns or grantees, may put up said land for sale at public auction, without appraisal, to pay any balance, that may rem'ain unpaid, of the money used for the purchase of said mortgages, or in making said advances, in all the sum of ten thousand dollars; giving in some newspaper in said county public notice of said sale, at least ninety days prior to the sale. And the conveyance of said party or their assigns or grantee, for the purposes aforesaid, shall pass a good title to said premises.”
    
      The contract then provides, that Graham & Belden shall increase the capacity of the distillery, assign as a further security to Barnes & Gibbs a certain, slop contract, deliver to them the high wines as manufactured, to sell on commission, etc.
    In considei’ation of the services to be rendered under said contract by Barnes & Gibbs, and the trouble and expense, etc., they would be put to in raising said $10,000, Graham & Belden agree to give them $2,000 as a compensation therefor. Graham & Belden gave their notes, payable in one year for this amount.
    Barnes & Gibbs, not having the money to lend, it was understood that they must raise it by means of their credit.
    At the time of entering into this contract of March 6,1850, and as a part of the same transaction, Theophilus Belden and wife executed and delivered to Barnes & Gibbs a trust deed of the Oxford lands, as specified in said contract. This deed is also made a part of the report of the referee. The deed conveys the premises to Barnes & Gibbs “ to have and to hold the same to them and to their heirs and assigns forever. But always on the especial trust as follows: that whereas, said grantees have purchased certain mortgages upon out-lot 76” (the distillery lot), “ amounting to the sum of six thousand five hundred and nine and sixty-one one-hundredth dollars, and have also loaned to said grantor and John Graham the sum of $3,400T3„9ñ, making in all ten thousand dollars, and have agreed to hold said mortgages without foreclosure, provided the same can be done with safety to the security thereof; and whereas, said Graham & Belden have agreed to redeem said mortgages, being the owners of the west part of said property: Now, therefore, in case the said Graham & Belden pay the full amount of ten thousand dollars and interest, in one year from this date, then and in that case said grantees are to re-convey the property to said Theophilus Belden. But in case any part of said sum shall remain unpaid, at the expiration of one year from this date, said grantees or their assigns shall have the full right to sell said premises at public auction, to the highest bidder, and without appraisal, upon giving ninety days notice of such sale in a newspaper printed in said county, and a deed of conveyance from the grantees shall vest a good and sufficient title in the purchaser at said sale.”
    Barnes & Gibbs, being unable to obtain the money without assistance, applied to'John G. Camp, who agreed to give his name and procure the money, upon condition that Barnes & Gibbs would assign to him, as collateral, the securities obtained of Belden & Graham, and give him, Camp, $1,000 for use of his name and for his services in procuring the money and keeping the paper renewed for the year. Camp obtained a loan of the money on the paper furnished, and Barnes & Gibbs assigned to him said securities received of Graham & Belden, as collateral. The trust deed was itself assigned and delivered into Camp’s possession, but no conveyance of the premises was made to him.
    The referee finds that there was no privity of contract between Camp and Graham & Belden, in relation to the loan, but that these contracts truly express the objects and intentions of the parties. That everything on the part of Camp and Barnes & Gibbs was done in ■ good faith. That though Camp was at this time one of the attorneys of Graham & Belden, he had ceased to be so before the sale of the Oxford lands, hereinafter mentioned, under said trust deed, and the sale is unaffected by that fact.
    The next important fact in the history of this case, necessary to be noticed, is, that in July, 1850, Moreau & Scudder, of New York, entered into partnership with Graham & Belden, in their mercantile and distillery business. By this co-partnership arrangement, Moreau & Scudder became jointly interested with Graham & Belden, not only in their goods and merchandise, but in all their other partnership property, including the distillery and the Oxford lands, subject to the incumbrances upon them, including the deed' of trust before referred to.
    Moreau & Scudder, finding their partnership concern much embarrassed, and being involved in a litigation with King, or his executrix, as to the amount due for the purchase of the distillery property; and deeming it advisable for their own protection that any money which they and Graham & Belden might pay Barnes & Gibbs should go toward the purchase of the securities held by them, rather than the payment of them, made an arrangement with Barnes & Gibbs, whereby whatever money was paid them should go toward the purchase of said contract of March 6, 1850. And Barnes & Gibbs, gave to Moreau & Scudder the following agreement:
    “ Sandusky, October 25, 1850.
    “ We hereby agree that when Joseph Moreau' & Co. shall pay to us any sum of money, said amounts shall apply toward the purchase of a certain contract made between us and Graham & Belden, on the 6th day of March, 1850; and when the said contract is paid, the same is to be assigned to them.
    “ Barnes &. Gibbs.”
    On the 23d day of November, 1850, Moreau & Scudder and Graham & Belden dissolved partnership. And the following is substantially their agreement of dissolution. The agreement recites, that “ Graham & Belden are indebted to Moreau & Scudder in the sum of $15,996.66.
    “ Now it is agreed between the said parties that the partnership heretofore existing between the parties under the name of Graham, Belden & Co., is hereby dissolved. That Graham & Belden, in consideration of said indebtedness, sell and transfer to Moreau & Scudder all their interest in all merchandise and personal property of the partnership, valued at $5,000 ; all their notes and other evidences of debt, and notes valued at $1,458, and accounts, etc., at $2,000. They release and quit claim their interest in the distillery property, valued at $2,500, amounting in all to $10,958, which it is agreed shall be taken by Moreau & Scudder in full satisfaction of so much of said indebtedness.
    “ Graham & Belden then agree to give to Moreau & Scudder, a note for $5,000, payable one year from date, and to secure it by a mortgage from Belden on said Oxford lands,” (already conveyed by a deed of trust to Barnes & Gibbs), “ and to give their joint note for the balance, $38t/t> payable in sixty days.”
    Graham & Belden and Moreau & Scudder, as found by the referee, made sundry payments on said contract of March' 6, 1850, to Barnes & Gibbs and Camp, viz: The sum of $3,423.06, as of March 6, 1851; $1,000 as of April 6, 1851; and $2,000 as of May 6, 1851 — making $6,423.06. Camp, who held the securities, received this money upon the contract generally, without applying it either upon the mortgages or in payment of the commissions.
    Moreau & Scudder and Graham & Belden failed to pay the balance of the said $12,000 due on said contract to Barnes & Gibbs, according to the terms of said agreement.
    Before any steps were taken by Barnes & Gibbs or Camp for the collection of the amount due them, Barnes sold out all his interest in said contract, and in the securities, to Gibbs, and authorized him to use his name and sell the trust premises the same as if he were present. Barnes resided in Buffalo. When the sale was finally made, Barnes joined in executing the deed of conveyance to the purchaser.
    In December, 1851, default having been made in the payment of the money secured by the trust deed, Gibbs, under the advice of Camp, gave notice under the power contained in the deed of trust, to sell the Oxford lands.
    Gibbs caused the said lands to be advertised for sale on the 5th day of March, 1852, as shown by the advertisement, a copy of which is attached to said petition. The advertisement was published in the Sandusky Daily Register, a daily newspaper published in said county of Erie, on the 4th, 5th and 6th day of December, 1-851, and no longer — its first insertion’being on the 4th. That on the 8th day of the same month it was transferred to, and published in, the Sandusky Weekly Register, a weekly newspaper published in said county, and was regularly continued in said Weekly Register until the day fixed for the sale, being a period-of only eighty-eight days, the last insertion in fact having been on the 1st day of March, 1852. ’ That on the 5th day of March, and at the other dates thereafter fixed for a sale, up to the time when said land was actually sold, the sale was adjourned by Gibbs to the respective days in said petition alleged. That the notices of such adjournment, and of the times and places to which the sale was postponed, were severally set up in the court-house, on the respective days on which they were had, and the notices copied in said petition, were published in the Sandusky Daily Register, the first insertion being on the 8th of March, 1852. But no notice of said 'adjournments were published in said Weekly Register. That said Daily Register and said Weekly Register were both published at the same office, by the same men, and were conducted by the same editors; and, with the exception of advertisements (which were inserted in either, or both, according to the instructions of persons ordering them), ordinarily contained substantially the same matter; but were, in fact, different papers, subscribed for and circulated among different subscribers, few persons subscribing for both.”
    The referee then states that Barnes was not present. That Gibbs, with the advice and consent of Camp, made the adjournments. That Belden was present and asked to have the sale postponed till after the next term of court in May, but did not consent to or name any particular day.
    During the progress of the King suit, viz., in May, 1851, King filed in said su-it an amended and supplemental bill, making Moreau & Scudder parties defendant, stating, among other things, that since the filing of the original bill, said Moreau & Scudder had become partners of Graham & Belden; that on a settlement with Graham & Belden, Moreau & Scudder had agreed to pay the said amount due Barnes & Gibbs, and had received compensation therefor in the partnership property; charges, that Camp, Barnes & Gibbs were not entitled to the $2,000 commissions, as the sum was usurious; ¡.hat Moreau & Scudder had already paid the amount of said loan, except said commissions, and the said King claimed that his lien for the purchase money, on the distillery lot, was prior to any of the claims of the defendants, and should be first satisfied out of it.
    In March, 1852, Moreau & Scudder filed their answer in the King suit. They undertake to explain their settlement with Graham & Belden, and by such settlement they claim to be the owners of all the interest Belden had in the Oxford lands, subject to the trust deed. They deny that what they had or might pay Barnes & Gibbs should be applied in satisfaction of the mortgages on the distillery lot, but claimed it should apply in purchase of the contract of March 6, 1850.
    It became, therefore, necessary to knowhow much was due on the Ward and McCartney mortgages, and how much had been paid Camp, Barnes & Gibbs on the securities in their hands.
    At the May term, 1852, of the common pleas, a decree was rendered in the King suit, fixing the amount and priority of liens on the distillery lot, reserving the question as to Barnes & Gibbs’ right to the commissions. The suit was thereupon appealed, by the executrix of King, to the district court. At the April term of the district court, 1853, a decree was rendered, finding “ that the owners of the mortgages were entitled to the amount due thereon, without any deduction on account of bonus or usury, agreed to be paid Barnes & Gibbs,” and ordering the distillery property to be sold, and proceeds brought into court. The court then refers the case to Rice Harper, Esq., “ to report the amount due said Camp, Barnes & Gibbs, or any other person on said mortgages, stating all the payments made to Barnes, Camp and Gibbs, and by whom, and the amount due complainant,” etc.
    Testimony was taken before Harper,.the referee, under this order, showing the sale of the Oxford lands to apply toward the amount due Barnes & Gibbs, and the amount of the proceeds. King, the complainant, claimed that these lands or their proceeds should be first applied in satisfaction of Barnes & Gibbs’ claims on the distillery lot. The referee reported upon the amount of the proceeds, and left it for the court to say whether it should be applied or not.
    Moreau & Scudder excepted to the report of the referee.
    This report was confirmed by the court on the first of June, 1853, the court ordering the proceeds of the Oxford lands to be applied on the amount due Barnes & Gibbs, and giving to Moreau & Scudder the benefit of that amount, as so much paid toward the purchase of the Ward and McCartney mortgages, and they were thus refunded this amount out of the sale of the distillery property.
    There was no exception taken, or objection made to this order of the court, by Moreau. & Scudder.
    Immediately after Camp had purchased the Oxford lands at the trustees’ sale in May, 1852, he offered to give them and the other securities up to Moreau & Scudder, in case they would pay what was due on the contract of March 6, 1850. They declined to do so; and neither they nor Graham & Belden, nor the plaintiffs, Babcock & Co., have ever offered to redeem or-to pay anything.
    Moreau & Scudder and Belden & Graham still refusing to pay up the amount due, Camp in the fall of 1853 contracted to sell 215 acres of - said premises to Willard Jefferson. He paid a portion of the purchase money, assigned the contract to his son, Onesimus Jefferson, one of the defendants, who went immediately into the possession of the premises, has made lasting and valuable improvements, has paid up the balance of the purchase money, amounting in all to about $2,159, and procured from Camp a warranty deed thereof on the 19th day of January, 1856. He is still in possession.
    The referee reports that Belden, under the pretense that he wanted it for some purpose connected with the suit against Camp, Gibbs, etc., to be used for Moreau & Scudder’s benefit, obtained from them on the 19th of April, 1853, a release of their said mortgage oh the Oxford lands. That on the 17th day of December, 1855, Belden fraudulently had said release recorded, and the said mortgage to Moreau & Scudder discharged and satisfied of record. This satisfaction appeared of record at the time Dalzell & Co. took their mortgage of Gibbs, on December 20, 1855.
    On the 11th of September, 1854, Camp and wife conveyed the residue of said Oxford lands to Gibbs, and Gibbs and wife at the same time gave back a mortgage to secure the amount of the purchase money unpaid, amounting to $1,200. $800 of this remains outstanding, and one 0. T. Sherman, not a party to this suit, is the owner of the mortgage.
    On the 20th of December, 1855, Gibbs and wife mortgaged to Dalzell & Co. the last mentioned premises, to secure three or four thousand dollars remaining unpaid. This mortgage was bona fide for a good consideration and in good faith, without any notice of any adverse claim on their part from any one.
    On the 28th of November, 1855, Belden and wife quit claimed his interest in the Oxford lands to the plaintiffs, Babcock & Co., in satisfaction of a judgment they had against Graham & Belden.
    Gibbs and wife on the 26th of December, 1855, conveyed the part of said lands not before sold to Jefferson, to G N. Wright, who paid nothing, but gave back his notes and mortgage to secure the purchase money. It is understood Wright was to pay nothing except it were applied in payment of the incumbrances, to Dalzell & Co., on the premises. Wright is in possession and has made improvements.
    ■ Upon the facts found by the referee, he finds the following to be the conclusions of law arising therefrom:
    1. That default was made by Graham & Belden and 'Moreau & Scudder, and the Oxford lands, therefore, became liable to be sold under the power contained in the trust deed. And that so long as Barnes & Gibbs retained the legal title, they, and not Camp, as their assignee, were the proper’ persons to execute the power.
    2. That the sale thus made by them was not a valid execution of the power, made in accordance with’ the terms of said trust deed. That the legal title passed to said Camp, but subject to the trust and all the equities of the parties. That Camp, by the payment of $2,650 toward the purchase, became entitled to a paramount lien to that amount, with interest.
    3. That the validity of the sale of the Oxford lands did not ■necessarily arise in the King suit, and that the proceedings in that case are not a bar to- the plaintiffs’, or Moreau & 'Scudder’s claim, -in this.
    
      4. That the legal effect of said proceedings was to appropriate so much of the payments which had been made by Graham & Belden, or Moreau & Scudder, to Barnes & Gibbs, as was necessary for that purpose, to satisfy the amount due them for commissions or bonus. And this appropriation was conclusive upon all the parties to the suit, and those claiming under them in this suit.
    5. That the receipt of the balance of .the proceeds of the distillery lot by Moreau & Scudder, after satisfying the claim of Barnes & Gibbs, does not preclude them, or the plaintiffs, from asserting their claim upon the Oxford lands.
    6. That the several purchasers from Camp, and those claiming under him, including Dalzell & Co., are chargeable with notice of the equities of Belden and his assigns.
    7. That the deed from Belden to Babcock & Co., conveyed to them all his interest in the lands. That they have a right to redeem by paying all paramount liens. Or to the surplus of proceeds after these liens are paid.
    8. That O. M. Jefferson, Gibbs and Wright, are entitled to an account for permanent improvements and taxes on the lands claimed by each, and should be charged with rents and profits.
    9. That by reason of the failure of Moreau & Scudder to pay Barnes & Gibbs as they agreed, they are not entitled to the fall benefit of their said mortgage. But they have a right to hold it for their indemnity for all advances paid. And the referee finds' that they are entitled to hold it to secure $1,677.40.
    10. That the liens paramount to the plaintiffs’ equity are — 1st. The balance that maybe due Jefferson, Gibbs and Wright, or either, for improvements, over-rents and profits. 2d. The amount of the purchase money paid by Camp, and interest, and — 3d. The amount due Moreau & Scudder aforesaid.
    11. That the purchasers from Camp have, in the order of their purchases, a lien upon the amount to be paid Camp. That Dalzell & Co. are entitled to all the equities of Gibbs.
    12. If a balance for rents and profits should be found against either Wright, Jefferson or Gibbs, it should be appropriated to the discharge of the liens in order found.
    To the rulings of the referee upon the law, the several parties have taken exceptions.
    Dalzell & Co., O. M. Jefferson & Co., Camp, Gibbs and Wright except, in substance, that :
    1. The referee erred in holding that the sale of the Oxford lands, under the trust deed, to Camp, was invalid. He should have held it valid.
    2. The referee erred in holding, that by the proceedings in the King suit, and the acts of the parties connected therewith, and the receipts by Moreau & Scudder of the proceeds of the premises, they and all claiming under them, were not estopped or barred from setting up any further claim to said Oxford lands.
    3. The referee erred in holding that Dalzell & Co., and Jefferson and Wright, were not innocent purchasers, but were chargeable with notice of the equities of Belden and his assigns.
    4. The referee erred in holding that the deed from Belden to the plaintiffs conveyed to them any title or interest in said premises whatever.
    5. He erred in holding that the plaintiffs, or Moreau & Scudder, had any right to redeem, and especially in holding that either had a right to maintain this suit without offering to redeem, and to pay the amount due. And in not holding that Moreau & Scudder’s, and Graham & Belden’s absolute refusal to redeem after the land was sold, precludes them and their assigns from redeeming now.
    6. He also erred in holding that any of the purchasers should be compelled to account for rents and profits over and above the taxes and improvements paid and made by them.
    7. The referee erred in not finding that the petition of the plaintiffs ought to be dismissed.
    Babcock & Co. except—
    1. Because the referee found that the question as to the bonus or commissions agreed to be paid Barnes & Gibbs, was adjudicated in the King suit, and he was precluded from inquiring into it.
    2. Because he found that Moreau & Scudder were entitled to $1,677.40.
    Moreau & Scudder except—
    1. Because the referee found there was but $1,677.40 due on their mortgage, when there was $5,000 and interest.
    2. Because he erred in his construction of the agreement of dissolution of November 28,1850.
    The statement of points, made by counsel, in argument, is limited to the question upon which the decision turns, viz: Is the “ King suit ” a bar to the present one ?
    
      H. Goodwin, for Babcock & Co.
    Is the “ distillery suit” a bar to this suit ? or, in the words of the defendants’ answer setting up the adjudication in that case, — Did the court “ impliedly and in legal effect affirm the sale of the Oxford lands.”
    It is not claimed that there is any decree affirming that sale, but that the court, “ impliedly and in legal effect ” affirmed it. We remark:
    I. If the court did such a thing, they have affirmed the most illegal sale which was ever affirmed by any court.
    2. The question was never made before them by any pleadings in that case.
    3. The facts of the sale were never before them in any shape.
    4. No such issue was ever before them.
    5. The parties never apprehended that there wa's any such issue in that case.
    6. If the court have affirmed it, they have done so without knowing it at the time.
    7. The subject matter of the distillery suit was certain lands and property in the city of Sandusky. It had no connection with these lands in Oxford. King who filed the bill had nc lien upon these lands.
    
      8. The King suit only purported to settle the rights of the parties interested in that distillery property
    9. The rights of the parties to take the Oxford lands were never drawn in question in that suit.
    10. The money arising from their sale only came in incidentally on a question of its application. Barnes, Gibbs and Camp were interested in the mortgages upon the distillery property. They had certain other securities ; and the question came up, not how much money they had or should make out of these other securities, but how much money they had received on their contract. They admitted they .had received $2,650 from the sale of the Oxford lands. 'Making that admission, it was a matter that Belden could not control.
    Let us ascertain what the law is upon this subject. When is it that a claim is barred? When is it that inquiry upon a matter will be considered by a court as res adjudicata ?
    We admit that “ where a court not only possesses jurisdiction over a particular cause, but that jurisdiction is of a peculiar and exclusive nature, its sentence or decree ex directo, in a matter properly cognizable there, is conclusive, whenever the same matter shall come in question collaterally in any other court.” Story Eq. PL, § 786.
    “But, then, to support such a plea, it must be averred in the plea that the same issue was joined in the former suit as in the bill; that the subject matter of the suit was the same, and that the proceedings in the former court were for the same object and purpose.” Story Eq. PL, § 780 (a).
    
    We are not disputing but that this objection may as well be taken by answer as by plea; but if'taken by answer, the answer must contain all the requisites of a plea. Now, what would this court do with a plea, which only stated that the former “ court had impliedly and in legal effect affirmed said sale?” Not that we wish to stand upon any technicalities; but a plea should be so shaped as to meet the law upon the subject. The difficulty here is in the facts. The plea, as it is, is better than the facts. The facts can not be distorted into a legal bar.
    
      (a) The same “issue” is not here joined as there.
    
      
      (b) The “subject matter” of the suit is different.
    
      (c) The “ object and purpose” is not the same.
    “ But to be a bar, the decree must not only be substantially between the same parties and for the same subject matter, but it must be also in its nature final, or afterward be made so by order of the court; for otherwise it will not be a bar. Therefore, a decree for an account of the principal and interest due on a mortgage, and for a foreclosure in case of non-payment, can not be pleaded to a bill to redeem, unless there is a final order of foreclosure.” Story Eq. PL, § 791; also note 1 and §§ 793 and 794.
    In the case of Wood v. Jackson, 8 Wend. 18, Marcy, J., recognized the rule as laid down by De Gray, C.J., in the case of Duchess of Kingston, that “ the judgment of a court of concurrent jurisdiction, directly on the point, is, as a plea, a bar, and as evidence conclusive between the same parties upon the same matter directly in question in another court; but a judgment is no evidence of a matter which comes collaterally in question merely, whether the court be of concurrent or exclusive jurisdiction; nor is it evidence of a matter incidentally cognizable, nor of a matter to be inferred by argument from the judgment.” See also Wend. 38, 39; 2 Seld. 143.
    The doctrine of these cases is exceedingly clear. The question must have been directly in issue. It can not “ be inferred by argument.”
    The point to be determined was: whether the sale was a legal sale under that power. This point certainly was never passed upon in the distillery suit.
    Scott, J., in giving the opinion of the court in Grant v. Ramsay, 7 Ohio St. Rep, 162, says : “We may remark in the words of Lord Kenyon, that if an action be brought and the merits 'of the question be discussed between the parties, and a judgment obtained by either of the parties, they are concluded,” etc.
    This question was never put in issue, nor its merits discussed. The first allusion, which we can find in that suit, to the Oxford lands, was in an exhibit filed by R. J. Gibbs and made out by John G. Camp, which was filed May 1, 1853. This was an exhibit showing the payments which they had received upon the mortgage held by them, and from whence they had received them. In this they admit that of date of May 1, 1852, $2,650 received by them as proceeds of Oxford lands. Upon the basis of this exhibit, Harper (the master) made up his report showing how much was due Barnes & Gibbs.
    No question of the legality of the sale was ever made. It-was not among the matters submitted to Harper. The pleadings and issues had been made up long before. No question of that kind could enter into the controversy.
    Camp & Gibbs were there admitting that they had received $2,65.0 on certain other securities which they held. It was not for the master or the court to refuse to .let them stand charged with, that with which they were willing to charge themselves.
    Exceptions were taken that this report had proceeded upon a wrong basis. Those exceptions appear never to have been acted upon.
    The court might very well acquiesce in letting Camp and Gibbs stand charged with what they had charged themselves, without, in any manner, confirming the sale. It was money in their hands which they applied on their debt. And the court could not well interfere with whatever application they chose to make of it. It is often that a court makes an order for the sale of property before the rights of the parties are determined, and orders the money brought into court, and then confirms the sale. Afterward they make an order of distribution and application. The application of money and the confirmation of á sale have no necessary connection with each other.
    It seems to me preposterous to claim that the legality of this sale was ever before the court in any way.
    “ A prior decree, to be available as a bar, must be pleaded or relied upon and set forth in answer, and it must be shown that the same points were in issue in the former suit.” Lockwood v. Wildman, 13 Ohio Rep. 430.
    
      
      F. B. Sadler, for Camp and other defendants:
    By the proceedings in the King suit, and the acts of the parties connected'therewith, Graham & Belden and Moreau & Scudder, and all claiming under them, are barred or estopped from setting up any claim to the Oxford lands.
    It became necessary, in that suit, to ascertain the amount due Barnes & Gibbs, and who was to pay it. It became necessary to settle the amount and priority of liens on the distillery property, and the equities of all the parties. It became necessary to know how much had been paid Barnes & Gibbs, and by whom, and how much they had realized out of the other securities in their hands. If the interest of Graham & Belden in the Oxford lands were not already sold and applied by Barnes & Gibbs, King, as the second lien holder on the distillery, had an equitable right to require them sold. The court found, that these lands had been sold, and appro-r priated the proceeds in part liquidation of the claim of Barnes & Gibbs, for which they held and sold them. If the sale were illegal, and the parties intended to object to it, they should have done it then. It is idle to say the pleadings presented no question as to the validity of-the sale. Whose fault is it that they did not? — The party to that suit who would have objected to the sale, should have presented such a case. He might have amended the pleadings, if necessary, for that purpose, and might have had the question referred to a master. Nothing of this kind was done. The case is just as binding upon them as though they 'had. It is the policy of a' court of equity to avoid a multiplicity of suits and unnecessary litigation. And hence, a party is just as much bound where he could and should litigate a question, as if he had done it.
    “ Whenever a matter is adjudicated and finally determined, by a competent tribunal, it'is considered forever at rest; and this principle embraces not only what was actually determined, but extends to every other matter which the parties might have litigated in the case.” Fischli v. Fischli, 1 Blackf. Rep. 360; Stockton, etc. v. Ford, 18 How. Rep. 418.
    £: It is the constant nractice to make decrees between co-defendants, founded on the pleadings and proofs, between the plaintiffs and defendants.” James v. Grant, 10 Paige Ch. Rep. 348; Elliott v. Bell, 1 U. S. Eq. Dig. 288, § 304; 6 Mumf. Rep, 316.
    
      “ A decree of a court of equity is conclusive between the same parties, upon the same subject matter.” Hopkins v. Lee, 6 Wharton, 109; Bank of U. S. v. Beverly, 1 How. Rep. 184; 3 How. Rep. 413; 1 U. S. Eq. Dig. 280, § 121, and cases cited.
    It binds all parties, plaintiffs or defendants. 5 Ohio Rep. 460; 6 Ohio Rep. 529.
    What is the object in requiring that all persons interested in the subject matter should be made parties? It is, that .everything connected with the subject matter in dispute may be settled, and save a multiplicity of suits. It is immaterial how a party is.brought into a court, whether as plaintiff or defendant, his rights are passed upon the same.
    The leading object in the King suit, was to ascertain and determine the amount and priority of the liens on the distillery property. To do this it was necessary to ascertain the amount paid Barnes & Gibbs, how and by whom. To ascertain whether the Oxford lands had been sold, and proceeds applied, and when. The parties interested were all before the court. If the lands were legally sold, the proceeds should have been applied. If not legally sold, the sale was to be treated as a nullity, then the sale amounted to nothing, and there were no proceeds to apply. The parties objecting to the legality of the sale, should have made it appear that the sale was void. If Barnes & Gibbs had but mortgaged the lands for the - amount received, and that had appeared, it would nót have been a payment by Moreau & Scudder, or treated as such. The court and all the parties before it treated it as a valid sale; a decree was made accordingly; Graham & Belden and Moreau & Scudder had the benefit of it in that suit. Can they now turn around and repudiate it, and claim there was no legal sale made ? We clearly think not.
    
      N. H. Swayne, also, for Camp and others.
    
      
      George Reber, for Moreau & Scudder:
    It is claimed that the decree in the King case is a bar to any inquiry into the sale of the Oxford lands — that we are too late.
    If the sale of the Oxford lands came up in that case as a question to be heard and adjudicated, and the pleadings show that such was the fact, then the plea is good. If otherwise, then it is not. If an incidental matter comes up during the progress of the suit, which is not mentioned in the pleadings, and which in point of fact was not tried, the decree in the case is no bar to future inquiry. According to the old rule, and it has never been changed, when a party pleads a former decree, it is necessary to set out enough of the pleadings in the original case to show the court that the points were the same in both cases. Mitford’s Pleadings, 299.
    I should like to see this rule applied in this case. I should like to see a single word in any pleading in the King case, whether bill, answer or replication, which asserts or denies the validity of the' sale of the Oxford lands. There is not one single word, even, in the evidence, on this subject. There is not one word impeaching this sale.
    How does the case stand in point of fact ? The Oxford lands were sold while the King suit was going on. When the case was referred to a master to ascertain the amount that was due Barnes & Gibbs on the contract of Moreau k Scudder, Gibbs, at his own instance" presented a statement to the master — a kind of account-current — in which he deducted from the balance claimed by him the sum of $2,650, which he received from the sale of the Oxford lands. This is the precise manner in which everything in relation to these lands crept into the King suit.
    The instructions to the master direct him to inquire what payments have been made to Barnes & Gibbs. Gibbs goes before him and says he.is to be charged with $2,650. Moreau & Scudder say to the master, we object to that payment, because it arises from the sale of the Oxford lands, which was illegal. The answer of the master would be, and was, “ I know nothing about that. That sale is not before me, and I can not determine whether it was legal or not. I am to inquire what payments have been made to Barnes & Gibbs, and. not where they got the money. Where they got it is none of my business, nor have I any power to inquire into that.” It was necessary in the very start for Moreau & Scudder to show their dissent to the application of this money, otherwise, their assent would be presumed, which would amount, in law to the ratification of the sale. The record must show it. Hence it was, when the application ivas sought to be made, that they objected, and when the master allowed it they excepted, that the record by its silence might not speak against them, and brought these exceptions before the court. As we well knew, the.court could do nothing in the matter. The court could only say to us, as it did say: “ We can not try the validity of this sale in this suit. There is nothing in the pleadings or the evidence, or in the case, about it. We can not make a side 'issue at this stage of the case, to try the validity of this sale. Gibbs Avants to credit you with $2,650, and we must let him ; we can not stop to inquire hoAv he got the money. If there is anything Avrong about it, you must inquire into it in another suit. Besides there is á bill noAv pending in this very court, to try this very matter, and you must settle it there.” Such Avas the fact. A bill was then pending to settle all these questions. We gained all we expected, for the record shoAved that Ave had not assented to the application of the money in any stage of the case, and in this very way affirmed the sale;
    If the decree in the King case is a bar to any inquiry into the validity of the sale of these lands, then if the court erred in their opinion on that point, we can reverse it, if not too late, by bill of review. But Ave can not bring a bill of revieAv to reverse the opinion of the court on the subject of this sale, because the court gave no opinion, and there is nothing in the record on Avhieh to base such a bill for such a purpose. If the master could not inquire into this sale, if the court had no power to do it, and Ave have no remedy by a bill of revieAv, to correct the action of the court, because it would give no opinion, must we be barred from inquiring into this sale, simply because we entered our protest on the record in the only way we could do it, that its very silence might not rise up against us ? What was done by Moreau & Scudder in that suit, after the case was referred to the master, might have been taken as evidence of the confirmation of the sale, but can never be set up as a plea in bar.
    
      A. G. Thurman, also for Moreau & Scudder, argued orally:
    The decree in the King suit is no bar. Nor is there any estoppel. 1st. The facts make no estoppel. 2d. The only persons who could insist upon the facts as an estoppel, are the defendants, Camp et al. Neither Belden nor the complainants have any such right. If, therefore, redemption be decreed in favor of the complainants, it necessarily lets Moreau & Scudder in, the complainants having no right to exclude them.
   Brinkerhobb1, J.

The case has been elaborately argued orally, and in written and printed briefs ; and, as was to be expected, from the complicated transactions and relations of the parties, and the numerous exceptions filed to the report of the referee, a great number and variety of questions have been urged upon our consideration.

Moreau & Scudder were made parties defendant after the case had been appealed to the district court; and we think this was properly done, under the ruling in Grant v. Ludlow, 8 Ohio St. Rep. 1.

They file their answer in the case in the nature of a cross-bill, and they, in conjunction with the plaintiffs, Babcock & Co., contest the legal validity of the trust deed, and of the sale made under color of its provisions.

All the other defendants claim title, mediately or immediately, under the trust deed, or under sales made ostensibly under its provisions; and around these points the contest is principally concentrated; and very naturally so — for, if the trust deed, and the sales made under color of its provisions, were valid and regular; or if the plaintiffs and Moreau & Seudder occupy such a position that they are not now at liberty to contest either the validity of the trust deed or of the sales made ostensibly under it, then, in as much as Moreau & Scudder claim under a mortgage, and the plaintiffs under a conveyance, both made subsequent to the deed of trust. and subject to the rights which it conferred, it is obvious that their claims are cut off, must fall to the ground, and the petition be dismissed.

This trust deed, it will be observed, was in the nature of a mortgage, given as a security for money loaned; and by its terms conferred on the lender and grantee a power of sale, without appraisement, on default being made in the repayment of the loan. And if, in order to decide this case, it were necessary for us to pass definitely upon the question of the validity of a sale made in pursuance cf the terms of such an instrument, it would become a subject of serious and perhaps doubtful inquiry, whether, in view of the long-established policy of our laws forbidding the sale of lands pledged by way of mortgage for less than two thirds of their appraised value, such a sale could be upheld. But, in our view of the case, it is not necessary to pass upon that question — and we avoid the expression of any opinion upon it — because, whether the sale under the deed of trust were valid or invalid, we are of opinion that the only parties interested in questioning the validity of that sale, to-wit, the plaintiffs, and Graham & Belden, and Moreau & Scudder, are concluded by the proceedings and decree in • the King suit, and are not now at liberty to call the validity of that sale in question.

All the parties now here seelcing to annul the sale under, the deed of trust, were parties to the King suit. The leading objects of that suit, on the part of King, were to enforce his vendor’s lien on the distillery property; and, in as much as his vendor’s lien on that property was subsequent and subject to the lien of the Ward and McCartney mortgages on the same property — and which mortgages, as well as the trust deed for the Oxford lands, were owned and held by Barnes & Gibbs, or Camp — all of whom were also parties to the King suit, to compel Barnes & Gibbs to exhaust the Oxford lands, on which they had an exclusive lien, and to apply their proceeds to the discharge of the amount due them, before resorting to the distillery property, on which he, King, had a subsequent lien. These objects King, by the decree of the court in his case, accomplished. The proceeds of the sale of the Oxford lands were first applied toward the extinguishment of the indebtedness of Graham & Belden to Barnes & Gibbs; and Graham & Belden, in whose shoes the plaintiffs stand, had the benefit of-such application, in the reduction of the amount of their indebtedness; and Moreau & Scudder, as purchasers of the distillery property subject to the prior liens of Barnes & Gibbs, and King, also had the benefit of such application of the proceeds of the sale of the Oxford lands, by having decreed to them, and receiving, the surplus of the proceeds of the sale of the distillery property remaining after the discharge of King’s vendor’s lien. It seems to us that the validity of the sale of the Oxford lands was necessarily in issue in the King suit; that the master in taking and stating an account between the parties in that suit must necessarily, in fact or in effect, pass upon the validity of that sale; for if valid, the proceeds of that sale ought to have been, as they were, allówed; if invalid, they ought not to have been allowed; the proper parties were all before the court; and if Graham & Belden, or Moreau & Scudder, desired or intended to contest the validity of the sale under the deed of trust, then and there was the proper forum for that contest; that having received the benefit of the proceeds of the sale of the Oxford lands there, they are precluded from contesting its validity here; and that, if the benefits arising from the application of the proceeds of that sale were, by the decree of the court in that case, forced upon them against their wish and will, their proper remedy was to be found in a proceeding in error to reverse or modify the decree of the court in that case, and not in an original and independent proceeding. “ The judgment of a court of competent jurisdiction upon a question.directly involved in the suit, is conclusive in a second suit between the same parties, depending on the same question, although the subject matter of the second action be different.” Doty v. Brown, 4 Comstock, 71. And in respect to this quality of conclusive effect upon parties and privies, the decrees of courts of chancery, upon matters within their jurisdiction, stand upon the same footing with judgments at law. 2 Smith’s Leading Cases, Hare & Wallace’s ed. 593. “A decree in chancery may be given in evidence between the same parties, or any claiming under them; for their judgments must be of authority in those cases where the law gives them a jurisdiction; for it were absurd that the law should give them a jurisdiction, and yet not suffer what is done by force of that jurisdiction to be full proof.” Buller’s N. P. 243.

This view of the case is, by counsel in argument, strenuously contested, on the ground that the.validity of the sale of the Oxford lands under the deed of trust was not put in issue by the pleadings in the King suit.

It is undoubtedly a general rule, that, in order to make a judgment at law conclusive between the same parties or their privies in a subsequent suit, the matter attempted to be disputed in the subsequent suit must have been put in issue by the pleadings in the first. This general rule, however, is subject, in particular cases, to important modifications, even in respect' to judgments at law. Accordingly, in Wood v. Jackson, 8 Wend. 10, it was held, that a former judgment may be given in evidence, accompanied by such parol proof as is necessary to show the grounds upon which it proceeded, where such grounds, from the form of the issue, do not appear from the record itself, provided that the matters alleged to have been passed upon be such as might have been legitimately given in evidence under the issue joined; and such that, when proved to have been given in evidence,- it is manifest by the verdict and judgment, that they must have been directly and necessarily in question, and passed upon by the jury.” Thus, the general rule is subject to an important qualification, even in cases at law, where the authorized form of pleading is such as not to show the ground on which the judgment, relied on as an estoppel, proceeded.

The King suit was a suit in chancery, between numerous parties, involving an account between them embracing many and complicated transactions and claims ; it was not desirable, and was scarcely possible, that all the claims of the parties, in respect to the various items necessary to be passed upon and adjudicated in settling an account between them, should be made matter of distinct averment in the pleadings.

It was the policy of proceedings strictly in the course of the common law, to narrow the issues to a few distinct points of contest; and hence there was, as to them, reason in the rule contended for by the plaintiffs’ counsel; but it seems to us, that, as to a proceeding in chancery, involving numerous items and complicated matters of account between many and variously related parties, and where many of the claims of the parties respectively must be made and contested orally before the master, and on argument of exceptions to his conclusions, the reason of the rule fails, and the rule itself can have no proper application. And the parties representing all the interests and titles claimed here being before the court there, and a final account between them, growing out of their re spective titles to, and liens upon; the • Oxford lands and the distillery property and the proceeds of both, being the leading object and purpose of that litigation, we can not but think that the validity of the sale of the Oxford lands must be regarded as a matter necessarily in issue between them in the framing of that account, and the decree of the district court affirming the account stated by the mastfj must be held to be conclusive. Certainly it was competent tor Graham & Belden — in whose shoes the plaintiffs stand — and for Moreau & Seudder, the mortgagees of Graham & Belden, to have contested in the King suit, the validity of the sale under the trust deed; they had the same interest in making such a contest then that they have now — unless, indeed, they were willing to take the benefit of the proceeds of that sale first and te contest it afterward — which surely can not be permitted— and either failing to make the contest there, or acquiescing, without a resort to a proceeding in error, in a decision adverse to their interests and claims, they can not be permitted to assert them now. The public good requires that there should be some end to-litigation.

. This view of the case rendered it unnecessary to decide any of the numerous other questions which would have arisen in the case, had n,ot the plaintiffs and Moreau & Scudder been concluded by the King suit.

The exception to the referee’s third conclusion of law is sustained, and the petition will be dismissed.

Scott, G.J., and Sutliee, Peck, and Gholson, JJ., concurred.  