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der a deed executed by Rodgers November | founded upon the legal title subsequently 14, 1864, which was valid upon its face, conveyed by the patent; nor did such occumade by one having title to the land, and pation constitute a sufficient equity in favor in which the grantor covenanted that he of the occupant to control the legal title was seised in fee simple, had good right to thus subsequently conveyed. Obviously this sell the same; that it was free from encum- case has no application to the one under brance, and that he would warrant and de- consideration. Here the United States had fend the title unto the grantees against the issued a patent to Rodgers "and to his heirs claims of all persons. The court finds that and assigns forever," subject to a condition, the defendants and their grantors acted in not that the title should ever revert to the good faith in making the purchase of said United States, but that he should not alienlands and in taking this deed, by which we ate the lands without the consent of the understand that they paid a valuable con- Secretary of the Interior. The government sideration, and had no actual notice of any thus passed all its title to the land in fee defect in the title of their grantor. It is simple, and a violation of the condition of true that if the grantees had examined the the patent would not redound to the benefit Rodgers patent they would have discovered of the United States, or enable it to rethe restraint upon his alienation of the possess the lands, but was simply intended land, but it is too much to say that a deed to protect the grantee himself against his valid upon its face, and taken in good faith own improvident acts, and to declare that for a valuable consideration, without actual the title should remain in him, notwithnotice of the facts, does not give color of standing any alienation that he might make. title. Color of title was defined by this court in Wright v. Mattison, 18 How. 50, 56, 15 L. ed. 280, 283, "to be that which in appearance is title, but which in reality is no title." Said Mr. Justice Daniel: "The courts have equally concurred in attaching no exclusive or peculiar character or importance to the ground of the invalidity of an apparent or colorable title; the inquiry with them has been whether there was an apparent or colorable title, under which an entry or a claim has been made in NATIONAL FOUNDRY & PIPE WORKS, good faith." See also Beaver v. Taylor, 1 Limited, Plff. in Err., Wall. 637, 17 L. ed. 601; Cameron v. Unit

We have considered all the points taken by the plaintiffs, and are of the opinion that they are not sustained; that the judgment of the Supreme Court of Kansas was right, and it is therefore affirmed.

Mr. Justice White and Mr. Justice MoKenna dissented.

v.

PANY.

(183 U. S. 216)

ed States, 148 U. S. 301, 307, 37 L. ed. 459, OCONTO CITY WATER SUPPLY COM. 461, 13 Sup. Ct. Rep. 595. There was no evidence in this case, except from the pat

1.

ent, that the grantees even knew that Rod-Federal question-denial of due effect to gers was an Indian, as was the case in decree of Federal court-res judicata. Taylor v. Brown, 5 Dak. 344, 40 N. W. 525, much less that he belonged to the incompetent class; and they apparently received the deed, as many people do, without a careful examination of the grantor's title. In Kansas possession without paper title seems to be sufficient. Gilmore v. Norton, 10 Kan. 491; Anderson v. Burnham, 52 Kan. 454, 34 Pac. 1056.

The cases cited by the plaintiffs in support of their proposition that the deed from Rodgers did not constitute color of title are those wherein there was an element of fraud, or want of good faith, which are expressly negatived by the finding of the court in this case. Livingston v. Peru Iron Co. 9 Wend. 511.

3. That no title could be acquired against the right of the Secretary to declare the deed void, and hence the statute would not begin to run until after such action by the Secretary of the Interior. The case of Gibson v. Chouteau, 13 Wall. 92, 99, 20 L. ed. 534, 536, is relied upon to sustain this proposition. In that case it was held that the occupation of lands derived from the United States under a new Madrid certificate, before the issue of a patent, for the period prescribed by the state statute of limitations, was not a bar to an action in ejectment for the possession of such lands,

2.

3.

A Federal question is presented by a contention that due effect to a decree of a Federal court was denied by the action of the court below in sustaining a plea of res judicata predicated on a decree of such Federal court, where a determination whether the court correctly applied the plea necessitates deciding whether by sustaining such plea rights were denied which were vested under another decree of the Federal court.

Resort may be had to the pleadings and opinions in determining what was decided by a final decree of a United States circuit court entered after receiving the mandate of the circuit court of appeals reversing its prior decree and remanding the case with instructions to dismiss the bill, where from such decree there is uncertainty as to what was really decided.

A final decree in a controversy between a Judgment creditor of a waterworks company and the latter's mortgagees and their assigns, in which the validity of the mortgage and the foreclosure sale under it was assailed and a mechanics' lien asserted by such creditor,which decree determines that the mortgagees were lawfully in possession of the mortgaged property by virtue of such sale, and that there was no mechanics' lien in favor of such creditor, as against the mortgagees or their assigns, upon the waterworks plant and franchise, arising either from the laws of the state, the recording of the alleged lien, or a decree recognizing such lien as against the

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4.

waterworks company,—is a bar to a claim in
a suit between the same parties that by vir-
tue of a sale made under the decree recog
nizing such lien the judgment creditor be-
came the owner of the waterworks plant, en-
titled to the possession of the same, or, if
not the owner, had been vested with a para-
mount lien, or that in any event there re-
mained in the judgment creditor a right to
redeem from the sale under foreclosure.

Whether the pleadings in the cause justified a grant of affirmative rellef, considered as a mere question of practice, presents no Federal question.

A contention that by reason of the pendency In a Federal court of a suit to enforce a me chanics' lien upon the plant of a waterworks company when proceedings to foreclose a mortgage executed by such company were instituted in the state court, the Federal court had exclusive jurisdiction of the res, and the state court was without power in the premises, must be raised in a controversy between the lienor and the mortgagees and their assigns in which the validity of title claimed by the latter to have resulted from a sale under foreclosure is an issue and decided, or It will be deemed waived and concluded and foreclosed by the judgment rendered on such

issue.

[No. 33.]

Argued and Submitted March 22, 1901. Decided January 6, 1902.

INS ERROR to the Supreme Court of the

State of Wisconsin to review a judgment affirming a judgment of the trial court dismissing an action to establish priority of title acquired under the foreclosure of a mechanics' lien. Affirmed.

See same case below, 105 Wis. 48, 81 N. W. 125.

Statement by Mr. Justice White:

to said parties of the first part (Andrews &;
Whitcomb)
franchise as issued to said Oconto Water
of the Oconto Waterworks
Company, together with the entire one hun-
dred thousand ($100,000.00) dollars of
stock of said Oconto Water Company; and
further agrees to make an immediate issue
of one hundred thousand ($100,000.00) dol-
Oconto Water Company, the same to be se
lars in the first mortgage bonds of the said
cured by deed of trust on the entire Oconto
waterworks franchise and all of the rights
and privileges of said company in said wa-
terworks franchise; said deed of trust to be
made to some trust company to be hereafter
mutually agreed upon."

tion of said agreement a formal mortgage
About contemporaneously with the execu-
was given to Andrews & Whitcomb by the
water company upon "all the rights, privileg
es, immunities, franchises, and powers, of
whatsoever name or nature, which had been
granted to it."

record, and, moreover, a considerable time This mortgage was not at once placed on elapsed before delivery was made to Andrews & Whitcomb of the stock and bonds provided for in the agreement previously referred to.

In the meanwhile all the pipe contracted for was delivered, and the same had been used in connection with the waterworks plant. Although the water company was during this time obtaining money from Andrews & Whitcomb, it failed to use the money in payment for the pipe. In consequence the pipe works on September 15, 1890, recorded a claim for a lien on the plant of the water company. After the recording of this lien, and on January 13, 1891, the mortgage in favor of Andrews and Whitcomb, which, as already stated, had been executed on or about September 13, 1890, was placed on

In January, 1890, the city of Oconto adopted an ordinance authorizing the Ocon-record. to Water Company, its successors and assigns, to construct and operate waterworks in said city. Said Oconto Water Company is hereafter referred to as the water company. The water company commenced the construction of its plant. On August 28, 1890, it contracted with the plaintiff in error, the National Foundry & Pipe Works, Limited,-hereafter styled the pipe works,for a supply of pipe to be used in said water plant, the pipe to be delivered at intervals, and to be paid for partly in cash and partly on credit.

While the pipe was being delivered and placed in position, the water company, by an instrument in writing of date September 13, 1890, agreed with a firm known as Andrews & Whitcomb, whose members were domiciled in the state of Maine, in substance as follows:

On January 30, 1891, the pipe works filed its bill in the circuit court of the United States for the eastern district of Wisconsin to foreclose its asserted lien, and to procure a sale thereunder of the plant of the waterworks company and of the interest of that company in certain real estate upon which the company had constructed its pump and water wells, the legal title to the real estate being in the city, but the company having taken possession, under an agreement by a which it secured the right to obtain a conveyance, from the city, upon compliance with certain conditions. To this bill the water company was alone made defendant. lien asserted was contested by the defendant. This litigation will be hereafter re ferred to as the mechanics' lien suit.

The

Andrews & Whitcomb having made the advances provided in the contract of Sep

In consideration of cash advances to ag-tember 13, 1890, and additional advances gregate $40,000, to be made by said firm from time to time for the completion of the waterworks, the water company was to exetute its promissory notes for the amount of each advance. The water company agreed as to collateral security as follows: "To make an immediate transfer, in trust,

being required, they were made by Andrews & Whitcomb under contracts executed on March 13 and May 16, 1891, of tenor like unto the September agreement, the collateral security provided under that contract be ing made liable for the new advances. independent mortgage was executed.

No

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The water company not having performed | bill the water supply company was averred the stipulations made in its contracts with to be a corporation and a resident or citiAndrews & Whitcomb, on June 17, 1891, zen of Wisconsin, but Andrews & Whitcomb that firm commenced proceedings in a court denied such averment. Thereafter, in an of the state of Wisconsin to foreclose an as- amendment to the creditors' bill it was alserted lien which it claimed was created leged that subsequently to the filing of the upon the franchise and property by the bill the water supply company had been ormortgage and contracts to which we have al-ganized, and that it claimed to have deready referred. This litigation will be rived, through Andrews & Whitcomb, title hereafter referred to as the mortgage fore-to the rights and property of the water comclosure suit. To this suit the water company, but that said claim was subordinate pany was alone made defendant. On Au- to the lien of the plaintiff. Whether at the gust 13. 1891, a personal judgment was en- time of this amendment the water supply tered for $63,889.23 and costs, and a sale company had acquired the waterworks was decreed to enforce the lien declared in plant, or such acquisition was made subse the following clause of the conclusions of quently thereto, does not appear, nor is it law of the court: stated in the record that it was ever served with process.

"Third. In addition to such personal judgment, the plaintiffs are entitled to a further judgment decreeing, adjudging, and declaring the amount thereof, together with the proper costs for the enforcement of the same, a lien upon all of the property shown by the complaint in this action and the proofs adduced by the plaintiff herein in support thereof to have been sold, assigned, transferred, and set over or pledged to the plaintiffs by the defendant in trust and as collateral security for the repayment of the sums loaned and advanced the defendant by the plaintiffs under the contracts set forth in the complaint."

A full statement of the grounds for the equitable relief asked for in the creditors' bill is contained in the opinion in Andrews v. National Foundry & Pipe Works, report. ed in 36 L. R. A. 139, 22 C. C. A. 110, 46 U. S. App. 281, 76 Fed. 167. It suffices here to say that the bill assailed the validity of the mortgages to Andrews & Whitcomb and the transfer of stock and bonds to them, and attacked their foreclosure sale, and asserted the liability, as stockholders, of Andrews & Whitcomb and others, for unpaid subscriptions to the stock of the water company. A receiver was asked to take possesUnder this decree a sale was made at pub- sion of and operate the waterworks plant, lic auction to Andrews & Whitcomb, of the then in the possession of Andrews & Whitrights, privileges, immunities, franchises, comb, and an injunction was prayed to reand powers granted to the water company strain Andrews & Whitcomb from holding, by the ordinance of July 9, 1890, and the managing, or interfering in any way with stock and bonds pledged as aforesaid. The the rights, franchises, plant, property, sale was confirmed by the court, and posses-rents, profits, bonds, and affairs in the sion of the waterworks plant was taken by hands of said receiver, and from asserting Andrews & Whitcomb. At the offering a any right, title, or interest in the property, representative of the pipe works notified or the rents, issues, and profits thereof, unthose present that the pipe works claimed til the further order of the court. a paramount lien upon the property proposed to be sold, and that the purchaser would take subject to its rights.

The mechanics' lien suit culminated on October 3, 1892, in a decree in favor of the pipe works, recognizing its mechanics' lien Pending the mechanics' lien suit and the for the amount of pipe unpaid for, and a sale and purchase by Andrews & Whitcomb, sale was decreed to satisfy such indebtedthe pipe works brought an action at law ness. The conclusions of the circuit court against the water company in the circuit were supported by an elaborate opinion holdcourt of the United States for the eastern ing that, under the laws of the state of Wisdistrict of Wisconsin, making also defend-consin, a lien existed which it was the duty ants thereto Andrews & Whitcomb, sued as of a court of equity to enforce. 52 Fed. 43. garnishees. A judgment for the amount From the decree thus rendered an appeal due was obtained on January 2, 1892, as was prosecuted to the circuit court of apaginst the water company, but the action peals for the seventh circuit. was never prosecuted to a termination as against the garnishees.

On October 10, 1892, the circuit court, in the creditors' suit, appointed a receiver, and allowed a preliminary injunction. 52 Fed. 29. From the interlocutory decree granting an injunction an appeal was prosecuted to the circuit court of appeals for the seventh circuit.

On January 11, 1892, the pipe works filed in the circuit court of the United States a creditors' bill based upon its judgment at law and the return of execution thereon unsatisfied. This litigation will be hereafter referred to as the creditors' suit. The On November 7, 1893, the court of appeals water company, Andrews & Whitcomb, an for the seventh circuit (Woods, Circuit alleged corporation styled the Oconto City Judge, and Bunn and Baker, District Water Supply Company, to be hereafter re- Judges, sitting) affirmed the decree of the ferred to as the water supply company, as court below in the mechanics' lien suit, in well as various parties whom it was claimed which decree had been declared the existwere liable as stockholders for unpaid sub-ence of the mechanics' lien asserted by the scriptions, and others, were made defend- pipe works. The court in a per curiam ants. It would seem that in the original opinion adopted the reasons expressed by 22 S. C.-8.

the lower court. 7 C. C. A. 603, 18 U. 8. | the water company; third, that as stock. App. 380, 59 Fed. 19, 20. holders said firm were bound by the decree in the mechanics' lien suit, because, as stockholders, they were privies to the decree; fourth, that, assuming the validity of the mortgage in favor of Andrews & Whitcomb, yet as it was recorded subsequently to the time when the mechanics' lien in favor of the pipe works became operative, the mort

withheld from record by the consent or procurement of Andrews & Whitcomb, nor in fraud of creditors.

An appeal was prosecuted by the city of Oconto, by Andrews & Whitcomb, and also by the water supply company, as the successor in interest of Andrews & Whitcomb, by reason of having acquired, pending the suit, the rights of the firm in the matter in con

On January 11, 1894, the circuit court of appeals determined the appeal taken by Andrews & Whitcomb from the interlocutory order granting an injunction in the creditors' suit. The lower court was reversed, the court holding, for the reasons expressed in its opinion, that the contracts made between the water company and Andrews & Whit-gage was subordinate to such mechanics' comb were not ultra vires or otherwise in- lien; fifth, that the bonds issued by the wavalid, and that there had been no legal jus ter company, and which were delivered to tification for the allowance of an injunction. Andrews & Whitcomb and a defendant trust The court said, however, 10 C. C. A. 67, 18 company, were void; and sixth, that the inU. S. App. 472, 61 Fed. 789: "Whether or struments executed in the name of the not, and to what extent, the mortgage of the water company in favor of Andrews & franchises covers the plant of the company Whitcomb were made in good faith and for need not now be considered." After the fil-a valuable consideration, and were not ing in the circuit court of the mandate from the circuit court of appeals in such cause, the pipe works amended its bill by setting up the final decree it had obtained on Octo ber 3, 1892, in the mechanics' lien suit affirmed as above stated by the circuit court of appeals. Such lien, it was averred, was paramount to any rights asserted by Andrews and Whitcomb or their privies. To the bill and amendment Andrews & Whit-troversy. On this appeal the circuit court comb filed separate and elaborate answers. Without going into detail, the answers asserted the validity as mortgages of the instruments executed by the water company in favor of Andrews & Whitcomb, and their operative force upon the property and franchises, denied any liability of the members of said firm as stockholders and asserted that they were not bound by the decree in the me chanics' lien suit, because they were neither parties nor privies to that action; and they further claimed that under the statutes of Wisconsin no lien could arise in favor of one furnishing material or supplies in connection with waterworks, and that the decision of the Federal court to the contrary was erroneous, as the supreme court of the state of Wisconsin had, since the decision rendered by the Federal court, held that no mechanics' lien could be created by such a trans

action.

Upon these issues and similar issues joined upon certain interventions of creditors asserting mechanics' liens upon the prop erty of the water company, which it is unnecessary to refer to, a decree was entered on July 17, 1895, granting all the relief demanded by the pipe works company and the interveners. 68 Fed. 1006.

The court held, first, that there was a mechanics' lien in favor of the pipe works; that while it was true that, subsequent to its decision in the mechanics' lien suit, the supreme court of Wisconsin had decided that a mechanics' lien could not arise on the plant of the waterworks, under the circumstances disclosed, the Federal court was not bound by such interpretation of the state statute, and it adhered to its own previous conclusion to the contrary; second, that Andrews & Whitcomb were in legal effect the owners of all or nearly all the stock, and liable for the unpaid subscriptions thereon to the extent necessary to pay the debts of

of appeals (Woods and Showalter, Circuit Judges, and Seaman, District Judge, sitting) first considered whether the alleged mechanics' lien existed in favor of the pipe works. The court declared that by the authority of the thing adjudged, resulting from the decree in the mechanics' lien suit, the existence of such a lien was established as between the pipe works and the water company. Coming to consider whether the lien existed as between the pipe works and Andrews & Whitcomb and their privies, the water supply company, the court held that inasmuch as the supreme court of the state of Wisconsin, *interpreting the statutes of Wisconsin, since the decision of the circuit court of appeals in the mechanics' lien suit, had held that no mechanics' lien was authorized by such statutes against the plant of the water company, the Federal court should follow the construction of the Wisconsin statute announced by the highest court of the state, even though in doing so it became necessary to take a different view from that which the court had previously announced. The circuit court of appeals therefore decided that there was no mechanics' lien in favor of the pipe works or any of the interveners as against Andrews & Whitcomb or the water supply company.

Approaching next the consideration of the correctness of the ruling of the circuit court that Andrews & Whitcomb were privies to the decree against the water company in favor of the pipe works, because they were stockholders in the company, the court decided that while undoubtedly a stockholder was a privy to actions against the corporation in which he was a stockholder, when brought upon money demands asserted against the corporation, yet, as Andrews & Whitcomb held the stock of the water company, not as subscribing stockholders, but as contract creditors of the water company,

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the principle upheld by the lower court had|ing in the creditors' suit, application was been erroneously applied, and therefore An- made to this court for a writ of certiorari, drews & Whitcomb were not privies to the which was refused on April 26, 1897. 166 decree recognizing the mechanics' lien, and U. S. 721, 41 L. ed. 1188, 17 Sup. Ct. Rep. were in no respect bound thereby. In so far 996. Subsequently in the circuit court of as it had been decided by the court below that appeals, on motion by appellants "that manthe mortgage to Andrews & Whitcomb was date should direct that provision be made in subordinate to the mechanics' lien, because the decree for the conveyance to appellant recorded subsequently to the placing on rec- Oconto Water Supply Company of the legal ord of the affidavit as to such lien, the court title to the land holding the pump station said, 36 L. R. A. 151, 22 C. C. A. 118, 46 U. and wells of the waterworks plant," the S. App. 295, 76 Fed. 173: "The lien de court on May 18, 1897, overruled the mocrees out of the way all questions concern- tion with leave to the court below to*make ing the recording of that mortgage, and the necessary and proper orders for the transantecedent contracts disappear." mission of the legal title to the property.