Rep. 394). Decisions of a tribunal appointed by the military governor of a subjugated state are not binding upon the courts established in the state after it resumes its former sovereignty. Lusby v. Kansas City, M. & B. R. Co., 73 Miss. 360 (19 So. Rep. 239; 36 L. R. A. 510). Where a former action was prematurely brought and under the instructions of the court on that ground the jury returned a general verdict for defendants, who had pleaded equitable defenses also, such judgment on the former case is not res adjudicata upon the equitable issues. Gassert v. Black, 18 Mont. 45 (44 Pac. Rep. 403). Citing, Kleinschmidt v. Binzel, 14 Mont. 31 (35 Pac. Rep. 460; 43 Am. St. Rep. 604).

Sec. 693. Former adjudication-Decrees in probate proceedings. The decree of a probate court dividing a decedent's realty in accordance with a report of his executor does not affect the right of a prior grantee of one having an interest in the estate who was not made a party to such proceedings. Such a decree can in any event extend only to the succession of testamentary rights in the property. William Hill Co. v. Lawler, 116 Cal. 359 (45 Pac. Rep. 847). In New York it is held that the decree of a surrogate either probating or refusing to probate a will does not conclude the question of the validity of the testamentary devise of real property in a subsequent litigation involving the title thereto. Corley v. McElmcel, 149 N. Y. 228 (43 N. E. Rep. 628).

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Sec. 694. Former adjudication-Binds only parties and privies. A mortgagee is not bound by a subsequent judgment, to which he is not a party, adjudicating the validity of a subsequent tax title against his mortgagor. Logan v. Stieff, 36 Fla. 473 (18 So. Rep. 762.) The court say: "It is well settled that no one is a privy to a judgment whose succession to the rights of property thereby affected occurred previously to the institution of the suit in which the judgment was rendered. For example, a tenant in possession prior to the commencement of an action of ejectment cannot be lawfully dispossessed by the judgment, unless made a party to the suit. No alienee, grantee, assignee or mortgagee is bound or affected by a judgment or decree rendered in a suit com

menced by or against the alienor, grantor, assignor, or mortgagor subsequent to the alienation, grant, assignment, or mortgage, to which he is not a party, for the simple reason that otherwise his rights of property could not be divested, as these pleas assert to be the case here, without his consent, and the fraud or laches of the grantor or mortgagor could effect a forfeiture of rights and interests he had created by the most solemn conveyances. 1 Freem. Judgm. (4th Ed.) § 162; Cromwell v. McLean, 123 N. Y. 474 (25 N. E. Rep. 932); Shattuck v. Bascom, 105 N. Y. 39 (12 N. E. Rep. 283); Looney v. Simpson, 87 Tex. 109 (26 S. W. Rep. 1065); Boutwell v. Steiner, 84 Ala. 307 (4 So. Rep. 184; 5 Am. St. Rep. 375); Coles v. Allen, 64 Ala. 98; Pierce v. Faunce, 47 Me. 507; Powers v. Heath, 20 Mo. 319; Mathes v. Cover, 43 Iowa 512. An adjudication binds only parties and privies. Monroe v. Hanson, 47 Neb. 30 (66 N. W. Rep. 12). A purchaser of real estate is entitled to all the benefits, and subject to all the disadvantages, which, by the operation of any final adjudication affecting it, had attached to the property in the hands of the former owner. Zurbrugg v. Reed, N. J. Eq. Atl. Rep. 298).

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Sec. 695. Former adjudication-Changes in construction of statutes. A change in the construction of a statute does not operate retroactively so as to impair the obligation of contracts or affect the validity of previous judicial sales. Myers v. Boyd, 144 Ind. 496 (43 N. E. Rep. 567). A judicial construction given a statute in a particular suit will bind the parties thereto as to the matters in controversy, although the same court may subsequently make a different interpretation of the statute. Bilgery v. Land Trust, 48 La. 890 (19 So. Rep. 920).

Sec. 696. Former adjudication-Particular cases. Where an action in tort was brought for damages for obstruc-. tion of an easement, and upon a plea of not guilty recovery was had, it is held that the plaintiff's right to the easement at that time was established and that such recovery is prima facie evidence of the continuance of the right. Manning v. Port Reading R. Co., 54 N. J. Eq. 46 (33 Atl. Rep. 802).

It is held that a

An order confirming a sale under a decree in partition, not having been appealed from by the purchaser, is conclusive against him that he had no valid reasons for refusing to comply with his bid. Hammond Fr. v. Carlleand, 111 Cal. 206 (43 Pac. Rep. 607; 52 Am. St. Rep. 167). Citing, Boggs v. Hargrave, 16 Cal. 560 (74 Am. Dec. 561). judgment to foreclose a mortgage given for a portion of the purchase price of land, is not necessarily conclusive of the right of the vendee to maintain a suit in equity to set aside a sale for fraud. Schwan v. Kelly, 173 Pa. St. 65 (33 Atl. Rep. 1107). A judgment giving a plaintiff damages for the obstruction of a natural watercourse on his premises by the defendant does not preclude the latter, in a subsequent suit for damages to the same property from a continuance of the same obstruction, from showing that the damages claimed in such suit arise from other causes. Richardson v. City of Eureka, 110 Cal. 441 (42 Pac. Rep. 965). A judgment rendered in an action for the breach of a contract of sale in which the vendor is awarded as damages the amount of the first installment of the purchase price, is a bar to a subsequent action for other installments. Cook v. Cook, 110 Ala. 567 (20 So. Rep. 64). Where a vendor undertakes and does defend the title of his vendee in an ejectment against the latter, he will be bound by the judgment therein rendered, in a subsequent proceeding by the vendee for a breach of warranty. Fleckton v. Spicer, 63 Minn. 454 (65 N. W. Rep. 926). Where one is made a party defendant to a suit to foreclose a mechanic's lien under an allegation that she has some interest in the property to which the plaintiff's claim is superior, and such defendant admits such allegation in her answer, and fails to set up or claim any superior or paramount title to the property involved in the action, she is concluded by a general judgment in favor of the plaintiff, as against him and those who claim under his judgment. Southard v. Smith, 8 S. Dak. 230 (66 N. W. Rep. 316). A judgment taken by default in summary proceedings by a landlord for nonpayment of rent is conclusive between the parties as to the existence and validity of the lease in a subsequent action between them to have the lease adjudged a mortgage and cancelled for usury. Reich v. Cochran, 151 N. Y. 122 (45 N. E. Rep.

867; 56 Am. St. Rep. 607; 37 L. R. A. 805). For case depending upon particular facts and illustrating what constitutes a former adjudication, see Elizabethport Cordage Co. v. Whitlock, 37 Fla. 190 (20 So. Rep. 255).

Sec. 697. Demand and tender before suit. A vendor cannot recover costs in an action to rescind his conveyance on account of the vendee's fraud, unless, prior to the suit, he tendered, and kept good the tender of, all the money paid by the grantee, with interest. Fares v. Gleason, 14 Wash. 657 (45 Pac. Rep. 314). Before an action can be maintained to rescind a sale and recover money paid for land on account of insufficient or invalid deed, no fraud being shown, plaintiff must show demand on defendant for a good and sufficient deed. Dugger v. Dempsey, 13 Wash. St. 396 (43 Pac. Rep. 357). When the only relief sought is the reformation of a deed or other contract, a previous demand is essential, but where, in addition to the reformation, a recovery is demanded, no prior demand is necessary. Citizens' Nat. Bank v. Fudy, 146

Ind. 322 (43 N. E. Rep. 259).

Sec. 698. Demand and tender in an action for breach of real contract. In a recent case the supreme court of New York say: "The general rule, however, to be deduced from an examination of the leading authorities, seems to be that in cases where, by the terms of the contract, the acts of the parties are to be concurrent, it is the duty of him who seeks to maintain an action for a breach of the contract, either by way of damages or for nonperformance, or for the recovery of money paid thereon, not only to be ready and willing to perform on his part, but he must demand per-. formance by the other party. The qualifications to this rule are to be found in cases where the necessity of a formal tender or demand is obviated by the acts of the party sought to be charged, as by his express refusal in advance to comply with the terms of the contract in that respect, or where it appears that he has placed himself in a position in which performance is impossible. If the vendor of real estate, under an executory contract, is unable to perform on his part, at the time provided by the contract, a formal tender or demand on

the part of the vendee is not necessary in order to enable him to maintain an action to recover the money paid on the contract, or for damages." Ziehen v. Smith, 148 N. Y. 558 (42 N. E. Rep. 1080). Citing, Hudson v. Swift, 20 Johns. 24; Fuller v. Hubbard, 6 Cow. 13 (16 Am. Dec. 423); Green v. Green, 9 Cow. 47; Hartley v. James, 50 N. Y. 38; Bigler v. Morgan, 77 N. Y. 312; Burwell v. Jackson, 9 N. Y. 547; Bogardus v. Insurance Co., 101 N. Y. 328 (4 N. E. Rep. 522); Tamsen v. Schaefer, 108 N. Y. 604 (15 N. E. Rep. 731).

Sec. 699.

Dunn

Keeping a tender good-As to what is. In order for a debtor to stop the running of interest by a tender he must keep the money continually ready so that no profit is made upon it. Middle State Loan, B. & C. Co. v. Hagerstown M. & U. Co., 82 Md. 506 (33 Atl. Rep. 886). A tender of the amount required to redeem from a mortgage foreclosure sale must be kept good in order to be effectual as the basis of a subsequent action to compel a redemption brought after the time for redemption has expired. v. Hunt, 63 Minn. 484 (65 N. W. Rep. 948). The court say: "To keep a tender good the party making it must keep the money (not necessarily the identical coin or notes, but money of the kind) so that he may produce it when required, and in this way keep the tender open for the acceptance of the other party whenever he expresses a willingness to accept it. To keep a tender good it is not necessary that the party should keep the money on his person, ready to be paid over the instant it is demanded. He may deposit it in a bank or other place of safe keeping, but he must have it continuously on hand and under his control, so as to be able to pay it over when requested. The cardinal principle of the doctrine of tender is that it is substantial performance. Hence it must be continuing; that is, there must be a continued readiness. The universal rule is that a tender, in order to be effectual for any purpose, must be kept good, except in cases where the mere refusal to accept the tender effects a particular result. Thus the refusal to accept a sufficient tender per se discharges the lien of a mortgage; and we have held that, this being so, a failure to keep the tender good does not restore or