SAMUELS v. REVIERE et al., 108 F. 718

SHELBY, Circuit Judge, after stating the case as above, delivered the opinion of the court. The case we are considering is an action at law by Samuels against Reviere to recover 200 acres of land. Pending' this suit, being in possession of the land, Revira*, filed a bill in equity «.gainst Samuels to chncel the deed by which Hamnels claimed the land. A decree was entered canceling the deed, but on appeal the case was reversed, and remanded to be dismissed. The trial was on the merits in both the circuit court and the court of appeals. The question here is as to the effect of the decree dismissing the bill.

Samuels, the plaintiff in error, contends that it is res judicata as to the defense of Reviere that, when the land was sold by the sheriff’ and purchased by Sam-uels, it .was the homestead of J. M. Reviere, W. J. Reviere’s vendor, and therefore was not subject to, execution sale. Samuels’ contention is that this defense is a thing adjudged in the chancery case.

Reviere, on the other hand, contends that he did not, by the bill, seek the cancellation of the sheriff’s deed to Samuels on the ground that the land was a homestead, and that the question of homestead, not being in issue in the equity case, is not settled by the decree. It is true that the bill in equity did not seek a cancellation of the deed because of the lands having been a homestead. The grounds alleged in the bill are that the sale was for a grossly inadequate price, and that the defendant in execution had personal property that, should first have been levied on.

The one aim of the bill, however, was to obtain a cancellation of the sheriff’s deed. If the decree of the circuit court canceling the deed had not been reversed, it would have ended Samuels’ claim to the land. It would have been, as to him, in this case, res judicata, settling the invalidity of his deed to the land. The case having resulted finally the other way, and the bill having been dismissed on the merits, it would seem just that the decree should be equally conclusive as against Reviere that the deed was valid.

It is unquestionably a general rule that at law or in equity a judgment or decree is conclusive between the parties upon the matters determined. The contention of Reviere, however, is that the matter set up in his plea in reference to the homestead is not determined, because he did not put it in issue. He sought to have the deed canceled because of gross inadequacy of price at the sheriff’s sale, and because of other irregularities not raising the question of homestead.

It is well settled, however, that an adjudication is final and conclusive, not only as to the matters actually determined, but as to all matters which the parties might have litigated and have had decided as essentially connected with the subject-matter of the litigation, and coming within the legitimate purview of the original action. It is not meant by this that a suit is conclusive against the plaintiff as to a matter constituting another cause of action, which lie might have joined with the claim asserted in his action.

He need not, of course, assert such separate cause of action merely because he would have been permitted to join it. The rule does mean, however, that when a suit is .brought for a specific purpose, — as, for example, a bill in equity to remove cloud from title by canceling an adversary conveyance, — the plaintiff must assert in his cause of action all grounds upon which he claims that the deed he is attacking is invalid. He cannot be permitted to file a bill asking to have a deed canceled, asserting its invalidity upon one ground, and retain another to assert at some other time or in some other forum.

He must present his entire case. He cannot be permitted to withhold part of his case with or without notice in his bill. It follows that the decree' is as conclusive as to these matters which he should present and withholds as it is against those actually presented. Freem. Judgm. (4th Ed.) § 249, p. 441; Case v. Beauregard, 101 U. S. 688, 25 L. Ed. 1004; Perry v. McLendon, 62 Ga. 598; Beloit v. Morgan, 7 Wall. 619, 622, 19 L. Ed. 205; Parrish v. Ferris, 2 Black, 606, 17 L. Ed. 317.

If the land in controversy was a homestead, and not subject to sale, equity would have had jurisdiction in the, first instance to have enjoined the sale (Freem. Ex’ns, § 439; Webb v. Hayner [D. C.] 49 Fed. 601; Van Ratcliff v. Call, 72 Tex. 491, 10 S. W. 578); and, oí course, there is jurisdiction in equity to cancel the sheriff’s deed, after such sale of the homestead is made, because of its being a cloud on the title. This claim of homestead could have been set up in the bill in equity, and, if it had been sustained by the evidence, it would have justified the court in canceling the sheriff’s deed.

This question, therefore, is a thing adjudged. It is not proper that it should be retried. The decree in the equity case is an answer to the plea of homestead set up in this case. In holding that this defense of homestead was not concluded by the decree in equity, the circuit court erred. The judgment of the circuit court is reversed, and the cause remanded for a new trial.