Page:Federal Reporter, 1st Series, Volume 9.djvu/195

 180 FEDERAL REPORTER. �" Wliatever had been the opinion of other courts, it has been the doctrine of this court in regard to suits on contracts, ever since the case of Steam-paoket Co. V. Sickles, 24 How. 333, and, in regard to actions affecting real estate, since Miles v. Caldwell, 2 Wall. 35, that whene ver the same question has been in issue and tried and judgment rendered, it is conclusive of the issue so decided in any subsequent suit between the same parties; and also that where, from the nature of the pleadings, it would be left in doubt on what precise issue the verdict or judgment was rendered, it is competent to ascer- tain this by paroi evidence on the second trial. The latest expression of the doctrine is found in Cromwell v. County ofSao, 94 U. S. 351 ; Bains v. Brown, 94 U. S. 423." �In the present case, while it is true that this suit is instituted to foreclose the Thompson mortgage, an4 that the previous suit vs^asone to foreclose the Johnson mortgage, and therefore the subject-matter of the suits is different, in neither case has there been any contro- versy over the validity of the mortgage; the sole controversy has been between Mrs. Flan agin and the bank, and as to whetherthe bankhad a right to retain the mortgages as security for the $7,000 now due it. The assignments and transactions on which the bank bases its claim have all affecte d both mortgages precisely alike. If the first.note of $7,000 was in legal effect paid, and if in that case the husband never had authority to pledge the raortgages for the subsequent notes, then the bank had no claim to retain them, rior to receive any part of the proceeds of the mortgaged land in the first case, and has none in this case. The claim of the bank being founded on precisely the same title in both cases, it is evident that the complainant cannot succeed in this case without impeaching the correctuess of the decision of the court of appeals, rendered in a case in which the same parties were litigants over the same question. �It is error to suppose that because the two suits ooncern different subject-matters, the first cannot be conclusive of the second. On the contrary, the supreme court has repeatedly held that notwithstand- ing the two suits have proceeded upon different causes of action, if in the first the same matter of fact was put in issue between the same parties, and was a necessary ground of recovery, it is a final adjudi- cation of that fact and is an absolute estoppel in the second suit. Thus, in Cromwell v. County of Sac, on page 352 of the opinion of the court, it is said : �" There is a difference between the eiiect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand, and its effect as an estoppel in another action between the same parties upon a different cause of action. * * * xhe language, therefore, which is so often used, that a judgment estops, not only as to every ground of recovery oi ��� �