GREEN
v.
BOGUE.

*499 Mr. L.H. Bisbee for appellants.

Mr. George W. Smith for appellees. Mr. David B. Lyman and Mr. Theodore S. Garnett were with him on his brief.

MR. JUSTICE SHIRAS, after stating the case, delivered the opinion of the court.

How far the chancery rule, that if a plaintiff replies to a plea in bar, joining issue upon the facts averred in it, thus putting the defendant to the trouble and expense of proving his plea, he thereby admits the sufficiency of the plea, and that if such facts are found to be true, the bill must be dismissed without reference to the equity arising from any other facts stated in the bill, is affected or modified by rule 33 in *500 equity, which provides that "if upon an issue the facts stated in the plea be determined for the defendant, they shall avail him as far as in law and equity they ought to avail him," was a question put in the opinion of this court in Farley v. Kittson, 120 U.S. 315, but its consideration was not deemed necessary to the determination of that case.

In the present case the plaintiffs put down the plea for argument as to its sufficiency, and, after that question had been determined against them, filed a replication, putting in issue the facts averred in the plea, which issue was likewise found against them, and the question now presented is whether, by putting the case upon an issue of fact, instead of abiding by the issue as to the legal sufficiency of the plea, the plaintiffs are precluded from raising the latter question in this court.

Undoubtedly, under the rule in the English Chancery Court, recognized by this court in Hughes v. Blake, 6 Wheat. 453, 472, and in Rhode Island v. Massachusetts, 14 Pet. 210, the plaintiffs would be held to have abandoned their right to have the sufficiency of the plea as a defence to the bill again considered. But we think that, in view of rule 33, which has been adopted since those cases were decided, the plaintiffs may properly ask this court to review the decree of the court below in respect to the sufficiency of the plea.

The inequity of having a case turn on the fate of a plea of, perhaps, immaterial facts, doubtless led to the adoption of that rule.

In Pearce v. Rice, 142 U.S. 28, the effect of the rule was considered, and it was held that under it the court may, upon final hearing, do, at least, what, under the old rule, might have been done when the benefit was saved to the hearing — citing Cooper's Eq. Pl. 233, and Story's Eq. Pl. § 698, to the effect that if, upon argument, the benefit of a plea is saved to the hearing, it is considered, that, so far as appears to the court, it may be a defence; but that there may be matter disclosed in evidence which would avoid it, supposing the matter pleaded to be strictly true; and the court, therefore, will not preclude the question. See also, Hancock v. Carlton, 6 Gray, 39, 54.

*501 How far, then, do the facts alleged in the plea, and determined in their favor, avail the defendants in law and equity?

The defendants in error make two answers to this question. They say that the proceedings and decree in the state court, which form the subject of the plea, are conclusive of the entire controversy; and they say that, even if such proceedings and decree were not conclusive, yet the facts of the case disclose no equitable grounds for the relief prayed for in the present bill.

Without repeating the facts above particularly stated, it may be briefly said that the proceedings in the state court arose out of a sale of real estate decreed under a bill in equity filed by a pledgee of an undivided interest in the land to enforce his lien. The sale was made by a master, under the directions of the court, and to his return of the fact of the sale and to the confirmation of sale the plaintiffs in error filed exceptions. Those exceptions were based upon a petition containing allegations of fraud on the part of persons concerned in the sale, and especially an allegation that the sum of $602,000, returned as the amount bid, was not the entire purchase money, but that the further sum of $91,921 was part of the actual purchase money the fact of the payment of which had been concealed from the petitioners. The petition asked that the persons named, and particularly George M. Bogue, the purchaser, should be compelled to answer, and that the matter should be referred to a master in chancery to hear the proof of both parties, and to make due report to the court. An answer on the part of Bogue and others was put in, denying the allegations of fraud. The court on February 11, 1890, filed a final decree overruling the petition and exceptions, and confirming the sale. From this decree an appeal was taken to the Supreme Court of Illinois, which was pending undetermined in that court when the present bill was filed in the Circuit Court of the United States. It is, however, stated in the briefs of both parties that the Supreme Court of Illinois has since affirmed the decree of the Cook County Circuit Court.

A comparison of the facts alleged and the charges made in the petition in the Cook County court and in the bill in the *502 present case has satisfied us that substantially they were the same. It is now contended on the part of the plaintiffs in error that the cases cannot be deemed legally the same, so as to permit a plea of the first proceedings and decree as a bar to the present bill, because the relief asked for in the state court was the setting aside the sale, whereas the relief now sought is to enforce a trust as to a portion of the purchase money, leaving the sale to stand. But the facts averred and relied on in the state court are, as already stated, substantially those now alleged, and we do not deem the fact that a different form or measure of relief is now asked deprives the defendants in error of the protection of the prior findings and decree in their favor. The same matters of fact would have to be passed on, and if the plaintiffs in error are now entitled to an account for a suppressed portion of the purchase money they were so entitled in the proceedings in the state courts even if, for other reasons, those courts refused to set aside the sale.

Gardinier's Appeal, 89 Penn. St. 528, was a case where the defendant in an action of ejectment was, by the terms of the verdict, to hold the land in dispute upon certain conditions, with which he failed to comply. The plaintiff had judgment entered, and issued a writ of habere facias possessionem. Subsequently, the court granted a rule to show cause why plaintiff should not be enjoined from issuing said writ, which rule, after a hearing on affidavits and an inspection of the record, was discharged. The defendant afterwards filed a bill in equity to enjoin the plaintiff from proceeding with said writ, the grounds for relief being substantially those on which the rule to show cause was granted, and it was held that the question was res judicata, and the injunction was properly refused, the court saying: "That the judgment or decree of a court of justice upon a legal or equitable issue within its jurisdiction is binding and conclusive upon all other courts of concurrent power, is a rule founded on the soundest policy, and we are of opinion that we cannot grant the injunction prayed for without violating this rule."

So, in Frauenthal's Appeal, 100 Penn. St. 290, it was held *503 that when the defendant in a judgment obtains a rule to show bcause why execution thereon should not be stayed, and, after depositions are taken, the rule is discharged, said defendant cannot subsequently, upon proof of substantially the same facts, obtain relief by injunction in equity — that the principle of res judicata applies in such case; and the court said: "Whether the application to enjoin against issuing execution be by motion and rule, or by bill, the relief is sought through the equitable powers of the court alone, and not through the intervention of a jury. The appellee in this case made his election. He submitted his alleged grievance to a court of competent jurisdiction. He had his day in court. The identical matter was adjudged against him." The same principle has been often applied by this court. Goodrich v. The City, 5 Wall. 566; Robb v. Vos, 155 U.S. 13.

It is further urged that these two proceedings were not legally identical because the parties were not wholly the same, and that Mrs. Green did not join in the exceptions, and that Edward Green, who had joined, withdrew his objections. But the exceptions were brought and sought to be maintained in their interest and by their trustees and privies. "Parties, in the larger legal sense, are all persons having a right to control the proceedings to make defence, to adduce and cross-examine witnesses, and to appeal from the decision, if an appeal lies." 1 Greenleaf Ev. sec. 535.

"The parties to the suit at law having been parties to the suit in equity, the subject-matter and the defence being the same, it is not a sufficient objection to the introduction of the record in the equity suit that other persons were parties to the latter.

"No good reason can be given why the parties to the suit at law who litigated the same question should not be concluded by the decree because others, having an interest in the question or subject-matter, were admitted by the practice of a court of chancery to assist on both sides." Thompson v. Roberts, 24 How. 233.

We do not feel called upon to define the nature of Mrs. Green's estate under her father's will, but we are satisfied that *504 she was adequately represented by the trustees, and that the withdrawal of his exceptions by Edward Green, after issue formed and evidence, must be deemed to have been a final abandonment of such exceptions and an acquiescence in the decree. Last Chance Mining Co. v. Tyler Mining Co., 157 U.S. 683.

Besides pleading the decree of the state court as a bar, under the principle of res judicata, the defendants in error contend that, on the facts as found, the plaintiffs in error are entitled to no equitable relief.

The conclusion already reached renders unnecessary any extended consideration of those facts. But we have read the allegations and the evidence contained in this record, and have not been able to find any such state of facts as would have warranted the court below in sustaining the bill, even if the decree of the state court was out of the way.

The principal matter of complaint was based on the existence of the outside contract between Peters and Bogue & Hoyt, whereby the latter agreed to pay Peters, or to bid enough as against any other purchaser, to secure full payment to the receiver, and it is claimed that Peters, as the complainant in the bill, was under some kind of a fiduciary relation to the Green estate which made such an agreement fraudulent as respects that estate. We are unable to see that such was the relation between the parties, or that by such an arrangement Peters abused the process of the court.

We regard the opinion of the Supreme Court of Illinois, in Barling v. Peters, 134 Illinois, 606, as a satisfactory treatment of this part of the case, and content ourselves with referring to it.

Upon the whole we are satisfied that no wrong was done these appellants by the dismissal of their bill, and accordingly the decree of the court below is

Affirmed.