defendants, and plaintiffs plead said matter in res adjudicata, as follows: Defendants show that heretofore, to wit, on the day of July, 1894, one C. C. Davis filed a certain suit in the district court of Archer county, Texas, against W. M. Coleman, Clyde D. V. Hunt, and Mrs. Lula P. Hunt to recover the title to and possession of 160 acres of land in Archer county, Texas, and that at the same time E. A. McDonald filed another suit in the same court against the same defendants to recover 160 acres near the other tract of land, to wit, the one claimed by Davis. The defendants answered in said causes, and afterwards, to wit, at the August term, 1894, of the district court of Archer county, said causes were consolidated by order of the court, and thereafter prosecuted under the name and style of 'C. C. Davis et al. vs. W. M. Coleman et al.,' and the court entered an order changing the venue in said court to the district court of Jack county, Texas; and on the 20th day of March, 1895, said cause came on for trial in the district court of Jack county, Texas, and resulted in a judgment for the plaintiffs E. A. McDonald and C. C. Davis against all of said defendants for the title to and possession of said land. From this judgment the defendants appealed to the court of civil appeals for the Second supreme judicial district of Texas, and on the 21st day of March, 1896, said judgment was duly affirmed by the said court. An application was made for rehearing, which was in all things overruled by said court, from which the defendants applied to the supreme court of Texas for a writ of error, and their application was dismissed for want of jurisdiction, and thereby the said judgment became final and conclusive as between the parties thereto and as against all persons claiming by, through, or under them. Defendants show that the question in controversy in this case and the question involved in the case of Davis et al. vs. Coleman et al., as above stated, are one and the same, and that the sole question in each case is as to the true location of the north line of the Brazos county school-land survey, situated in Archer county, Texas, and the true location of the John Minter and other surveys, north of said Brazos county, some of which were owned by said Lula P. Hunt at the time of the trial of said cause and at the institution of the said suit; and defendants show that the present plaintiffs in this suit claim title only and solely through the said Lula P. Hunt, arising after the institution of said suits, and that the true question in each case was as to whether there is a strip of land between the Brazos county school land on the south and the John Minter and H. & T. C. Ry. surveys on the north; and defendants further show that in said judgment it was fully determined and conclusively established that the said strip was not embraced in any of plaintiffs' said surveys, and that the title was not in plaintiffs to said land; that the said Davis and McDonald each claim 160 acres of said land strip, and the defendants in this case each claim 160 acres of said strip, and that the effect of said judgment was to fully establish the fact that the plaintiffs herein and their vendor, Mrs. Lula P. Hunt, had no title to said strip. Defendants further show that said strip contains in all about 2,000 acres, and lies wholly on the north side of the said school-land survey; that in the year 1897, at a regular term of the district court of Clay county, Texas, in a certain cause therein pending wherein J. T. S. Gant, E. C. Simmons, and W. H. Keen were plaintiffs and one C. W. Word and Robert Houssells were defendants, a part of the same strip was involved, and the question presented was as to the true north line of the Brazos county school land, and the true south line of the surveys belonging to the said Word on the north of said school land lying due east of said Minter,-the question, in other words, being as to whether there was a strip of land not included in said Brazos county and said Word surveys; that on the trial of said cause in said court a judgment was rendered in favor of said plaintiffs, and it was found and established that there was a vacant strip of land between said surveys, being a part of the same strip involved in this case. That said judgment so rendered is now final and conclusive, and has never been appealed from, and that by the rendition of said judgment it has become and is now res adjudicata as between all the parties to said suit. and is stare decisis herein. Wherefore plaintiffs say that the said judgments herein mentioned fully establish the fact that the plaintiffs ought not to prevail in this action, and that the land for which the plaintiffs are suing is a part and parcel of the strip of vacant land lying between said

Brazos school land and the old survey on the north thereof, and leaves no room for controversy or doubt that the defendants are entitled to said land. Wherefore defendants plead said judgments in bar of this action and pray for judgment for the title to and possession of said land, and for all costs of suit, and general relief. F. E. Dycus, for Defts."

"And now come the defendants, and each for himself disclaims all rights, title, and interest in and to the lands in controversy, except that each defendant claims only the tract of land described as belonging to him in said original plea in abatement, etc. And each defendant says that he never did claim or possess any of the said land except said tracts, and that he has never claimed any land jointly with his co-defendants, but severally only; that is to say, the defendants have each claimed the tracts respectively claimed by him in his plea, and disclaimed as to all other land. As to the tract described and claimed by him in said plea (said plea being here referred to and made a part hereof) he pleads not guilty, and says that he is not guilty of the said supposed wrongs, injuries, and trespasses laid to his charge, nor any or either of them, in the manner and form as alleged by plaintiffs, and of this he puts himself upon the country. F. E. Dycus, Attorney for Defts."

In reply to the original answer and special plea filed by defendants in error, the plaintiffs in error filed and presented to the court their first supplemental petition and plea of res adjudicata, as follows:

"Now at this come Mrs. Agnes Platt and Mrs. Lula P. Hunt, plaintiffs herein, and file this, their first supplemental petition in this cause, and by way of replication to defendants' original answer filed herein deny all and singular the allegations and averments therein set out, and call for strict proof of the same. Wherefore they pray as in their first amended original petition.

"And by way of further replication to defendants' original answer these plaintiffs say: That heretofore, on the day of 1890, Mrs. Lula P. Hunt, then Mrs. Lula P. Dickey, was the sole owner and holder in fee simple of the lands and tenements set out and described in plaintiffs' first amended original petition, claiming and holding the same as a part of the four-league grant in the name of the Brazos county school land. That on the day and date aforesaid Warren West, Polk West, D. T. Meredith, and W. D. Youngblood filed upon said land, claiming the same to be vacant and unappropriated public domain of the state of Texas, and as such subject to their file and settlement under the homestead donation laws of said state. That the said Mrs. Lula P. Hunt, then Dickey, instituted her action of trespass to try the title in the circuit court of the United States for the Northern district of Texas, at Graham, against said parties, claiming said land to be a part of her said Brazos county school-land grant, and as such not subject to the files and settlement of said parties. That said parties answered in said cause, and were represented therein by counsel. That said cause was styled on the docket of said court as 'No. 179, Mrs. Lula P. Dickey v. Warren West et al.' That on the 27th day of October. 1890, said cause was tried by said court, and judgment duly rendered therein in favor of the said Mrs. Lula P. Dickey. That it was thereby determined and adjudged by said circuit court of the United States that said land was a part of the Brazos county school land, and was not vacant and unappropriated public domain of said state, and not subject to the files of said parties. And these plaintiffs further aver and charge that on the day of 1890, Mrs. Lula P. Hunt, formerly Dickey, was the legal and equitable owner and holder in fee simple and in the peaceable possession of the land set out and described in plaintiffs' first amended original petition filed herein; that on said day and date R. K. Dunlap, Mrs. Woodward, J. B. Watson, G. W. Edgin, S. Kuykendall, G. L. Allen, and J. T. S. Gant entered upon said lands, claiming the same to be vacant and unappropriated public domain of said state, and as such subject to their files and settlement under the homestead donation laws of said state. That the said Mrs. Lula P. Dickey instituted suit in the circuit court of the United States for the Northern district of Texas, at Graham, against said parties. That said cause was styled on the docket of said court as 'No. 178, Mrs. Lula P. Dickey v. Tully Wilburne et al.' That on the 27th day of October, 1890, said cause was duly tried by said court, both plaintiffs and defendants therein being represented by counsel, and judgment was ren

the

dered therein for Mrs. Lula P. Dickey; said court holding that said land was a part of the Brazos county school-land grant, and not a part of the vacant and unappropriated public domain of said state. Plaintiffs further aver that on day of 1892, J. T. S. Gant and G. W. Edgin again entered upon said land, claiming the same as vacant and unappropriated public domain of said state, and as such subject to their file and settlement under the homestead laws of said state. That said parties instituted the suit in the district court of Archer county, Texas, each claiming 160 acres of the land hereinbefore set out, which said causes were consolidated and prosecuted under the style of 'J. T. S. Gant et al. v. W. M. Coleman et al., No. 186.' That defendant Mrs. Lula P. Hunt, then Dickey, and W. M. Coleman, her foreman, were defendants in said cause. That defendants therein, to wit, Mrs. Lula P. Dickey and W. M. Coleman, claimed said land as a part of the Brazos county school-land grant, and as such not subject to the files and settlement of said parties. That the said cause was tried by the said court on the 4th day of March, 1892, all of said parties being present, and represented by counsel. That said court rendered judgment in said cause for Mrs. Lula P. Dickey and W. M. Coleman for said land, thereby holding and finding that said land was a part of the Brazos school-land grant, and not vacant and unappropriated public domain, and not subject to file and settlement of said parties under the homestead donation laws of said state. That said case, after the rendition of said judgment as aforesaid, was by the said Gant and Edgin appealed to the court of civil appeals of said state sitting at Ft. Worth, Texas, which judgment and decree was by the court of civil appeals in all things affirmed, thereby holding that said lands were a part of the Brazos county school-land grant as aforesaid. That all of said judgments were rendered by courts of competent jurisdiction, and are in full force and effect, and are unreversed. Plaintiffs further aver and charge that on the day of 1894, Mrs. Lula P. Hunt, joined by her husband, Clyde D. V. Hunt, being the legal and equitable owner and holder in fee simple of the lands set out and described in her first amended original petition, and being in the actual possession of the same, in order and for the purpose of checking, restraining, preventing, and avoiding the annoyance and heavy expense of continued litigation over said land with any and all persons who should settle upon said land, claiming the same as vacant, filed her bill in equity in the circuit court of the United States for the Northern dis trict of Texas, at Graham, claiming said land as a part of the Brazos county school-land grant in Archer county, and alleging that said land was not vacant and unappropriated public domain, and was not subject to settlement under the homestead laws of said state, and further alleging that one T. M. Cecil, sur. veyor of Archer county, Texas, had surveyed and was continually surveying and accepting files upon said land as vacant and unappropriated domain under the statute regulating homestead donations; that said cause was determined and adjudicated by said court on the 18th day of October, 1894, and a decree ren dered by said court in favor of said Mrs. Lula P. Hunt against the said T. M Cecil as such county surveyor of Archer county, Texas, adjudging said land to be a part of the Brazos county school land, and not vacant land, and forever and perpetually enjoining and restraining the said T. M. Cecil as such sur veyor, his agents, deputies, assistants, and successors in office, and attorneys from accepting any file or files upon said land from any one whomsoever, and from furnishing any one with field notes to said land, or any part thereof, whc might or desired to claim the same as vacant or public domain, or subject tc file or settlement under the homestead donation laws of said state. Plaintiffs further aver and charge that the defendants in this cause claim the land in controversy as vacant land under the homestead donation laws of said state; that said land as claimed by each of the defendants herein is a part of the land embraced in the decrees hereinbefore set out; that the plaintiff herein Mrs. Lula P. Hunt was a party to all of said decrees; that the land involved herein was involved in all of said causes; that the law and facts are the same in this cause as in all of those hereinbefore set out; that these defendants are urging the same defense and setting up the same claim from the same source as urged in all of said causes; that defendants knew of such decrees, and could have known of the same by mere inquiry; that they were notorious throughout Archer county. Plaintiffs further aver and charge that by reason

of the rendition of said decrees as aforesaid the fact that the land in controversy is a part of the Brazos county school land, and that it is not vacant and unappropriated public domain, and is not subject to file and settlement under the homestead donation laws of said state, has become a settled and established fact, and is now res adjudicata as to all persons so claiming the same, and is stare decisis herein. Wherefore these plaintiffs say that defendants cannot be heard to assert such claim, and that the decrees herein set out are a bar to defendants' claim; wherefore they pray as in their first amended original petition."

Demurrers were by each party presented to the court touching the sufficiency of the separate pleas of res adjudicata as presented by plaintiffs and defendants in error. Said demurrers were sustained by the court, and both pleas of res adjudicata were held insufficient as a plea in bar. The trial was had before a jury, which rendered a verdict in favor of the defendants in error for the land in controversy, and thereupon this writ was sued out.

Stanley, Spoonts & Thompson and R. F. Arnold, for plaintiffs in

error.

F. E. Dycus, for defendants in error.

Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges.

PARDEE, Circuit Judge (after stating the facts). The plaintiffs in error claim the land in controversy to be a part of the Brazos county school-land grant of four leagues, and that in former judicial controversies between them and persons other than the defendants in error they obtained judgments in accordance with their contention. The defendants in error deny that the land in controversy is a part of the Brazos county school-land grant, and show that in other controversies between the plaintiffs in error and persons other than the defendants judgments were obtained declaring that the lands in controversy were not included in the Brazos county school grant, but were vacant lands between said school land on the south and surveys on the north of it. Defendants in error further contend that each and all of said surveys were located on the ground in such a way as to leave room for the junior surveys under which they claim.

The first assignment of error, which takes up over three pages of the printed transcript, and is further fortified by a bill of exceptions showing the ruling of the court, is to the effect that the court erred in sustaining the demurrer to the plaintiffs' plea of res adjudicata. In regard to this assignment, counsel for the plaintiff in error say that the general rule in regard to res adjudicata is that there should be a concurrence of four conditions: (1) Identity in the thing sued for; (2) identity in the cause of action; (3) identity of persons and parties to the action; and (4) identity in the quality of the persons for or against whom the claim is made,-citing Davis v. Brown, 94 U. S. 423, 24 L. Ed. 204; Philipowski v. Spencer, 63 Tex. 607, and other authorities. But they claim that there are exceptions to the general rule, and that such exceptions become the rule in questions of boundary and in all other questions in which the general public may have or acquire an interest, and that in actions of this character a judgment of a court of competent jurisdiction declaring or adjudicating the fact involved concludes all persons, whether parties to the action or not. The adjudged cases and text-books cited in support of this proposition do not sustain it. In Bone v. Walters, 14 Tex. 564,

567, the former judgment was offered as a muniment of title, and the court held that, as there was no pretense that the defendant was a bona fide purchaser, it was wholly immaterial whether or not he was a party, or had notice of the proceeding. In Girardin v. Dean, 49 Tex. 243, it was held that the fact that the parties in the first suit were not identically the same as those in the second was no answer to the plea of former judgment as to the common parties, but otherwise the case might be permitted to proceed if the dismissal of the parties still left the court with jurisdiction. In State v. Wygall, 51 Tex. 621, the court held that, where the estate of a deceased person in the treasury of the state had been sued for and recovered by one set of heirs, another set of heirs, although without notice of the judgment, could not sustain another suit to recover from the state until the former judgment had been set aside. McCleskey v. State (Tex. Civ. App.) 23 S. W. 518, was a suit to dissolve a municipality, and the court held that a judgment in a former suit for the same purpose was identical as to parties, and the former judgment was binding. In Pitman v. Town of Albany, 34 N. H. 577, a judgment under a statute which empowered the court to establish a public boundary line between two adjoining towns was held to be a judgment in rem, and conclusive upon all persons. In Freem. Judgm. §§ 157, 174-176, 236, nor in Bigelow, Estop. (2d Ed.) 147, is there any text-book law which supports the pretensions of the plaintiffs. The true rule, as applied to private judgments, seems to be correctly stated in Hunt v. Haven, 52 N. H. 162, to wit: One cannot be privy in estate to a judgment or decree unless he derives his title to the property in question subsequent to and from some party who is bound by such judg ment or decree. That the former judgments pleaded in this case were judgments in rem or public judgments, or judgments binding the state, cannot be successfully asserted.

Another difficulty in regard to the proposition as applicable to the present case is that the record does not show whether the title under which the defendants in error claim antedated or was subsequent to the adjudications pleaded in bar. If their title was prior to such adjudications, it is very difficult to see how, in any event, they could be prejudiced by subsequent judgments rendered in suits to which they were not parties nor privies. If the title was subsequent to the adjudication, then there is no force in the argument of counsel for the plaintiffs in error, and which they support by authority, to wit:

"They, being in reality privies, were in a position to have known of the pendency of the action in which the decrees were rendered, could have made themselves parties, and could have had their rights adjudicated in either action. Having remained silent while those cases were being adjudicated, they cannot now be heard to dispute the facts they have established."

Some argument has been presented to the effect that, while no particular adjudication declaring these lands in controversy to be a part of the Brazos county school-land grant is res adjudicata against the defendants in error, yet the several decisions rendered in different suits to the same purport should have the effect of stare decisis. This argument, if otherwise good, is subject to the objection in this case that from the record the decisions are shown to have been not