105 Wis. 48, 81 N. W. 125. A writ of error from this court was allowed by the Chief Justice of the supreme court of Wisconsin. It was therein recited that in this suit there "was drawn in question the validity and binding effect of a title, right, and privilege claimed by the said National Foundry & Pipe Works, Limited, under authority exercised under the United States, and decrees duly entered in the circuit court of the United States for the eastern district of Wisconsin," and that "the decision of the said supreme court of the state of Wisconsin was against the right and privilege specially set up by said National Foundry & Pipe Works, Limited, under said authority and decrees."

Mr. George H. Noyes argued the cause and filed a brief for plaintiff in error:

The state court failed to recognize the validity of, and to give due effect to, the decree of the United States circuit court for the eastern district of Wisconsin under and by virtue of which the plaintiff in error acquired and claims its title to the property in question, thus presenting a Federal question.

Dupasseur v. Rochereau, 21 Wall. 130, 22 L. ed. 588; Embry v. Palmer, 107 U. S. 3, 27 L. ed. 346, 2 Sup. Ct. Rep. 25; Crescent City L. 8. L. & S. H. Co. v. Butchers' Union 8. H. & L. S. L. Co. 120 U. S. 141, 30 L. ed. 614, 7 Sup. Ct. Rep. 472; Pittsburgh, O. C. & St. L. R. Co. v. Long Island Loan & T. Co. 172 U. S. 493, 43 L. ed. 528, 19 Sup. Ct. Rep. 238; Green Bay & M. Canal Co. v. Patter Paper Co. 172 U. S. 58, 43 L. ed. 364, 19 Sup. Ct. Rep. 97; Hancock Nat. Bank v. Farnum, 176 U. S. 640, 44 L. ed. 619, 20 Sup. Ct. Rep. 506; Avery v. Popper, 179 U. S. 305, 45 L. ed. 203, 21 Sup. Ct. Rep. 94.

Hewitt v. Butterfield, 52 Wis. 384, 9 N. W. 15; Barr v. Gratz, 4 Wheat. 220, 4 L., ed. 555; Baudin v. Roliff, 1 Mart. N. S. 165, 14 Am. Dec. 181; Webb v. Den, 17 How. 576, 15 L. ed. 35; Crescent City L. S. L. & S. H. Co. v. Butchers' Union S. H. & L. S. L. Co. 120 U. S. 141, 30 L. ed. 614, 7 Sup. Ct. Rep. 472; 2 Jones, Ev. § 607.

The mechanic's lien decree, sale, marshal's deed on sale, and order of confirmation were conclusive, not only as against the Oconto water company, but as against the defendant in error, unless attacked for want of jurisdiction in the court, or for fraud or collusion.

Candee v. Lord, 2 N. Y. 269, 51 Am. Dec. 294; 1 Black, Judgments, § 260; 2 Black, Judgments, § 605; Freeman, Judgments, §§ 335, 418; Wells, Res Adjudicata, pp. 150, 151; Bigelow, Estoppel, 5th ed. 150-152; Lauman's Appeal, 8 Pa. 473; Hall v. Spaulding, 40 N. J. L. 166; Naylor v. Mettler (N. J. Eq.) 11 Atl. 859; Swiggart v. Harber, 5 Ill. 364, 39 Am. Dec. 418; Oakes v. Williams, 107 Ill. 154; Pickett v. Pipkin, 64 Ala. 522; Sidensparker v. Sidensparker, 52 Me. 481; Insley v. United States, 150 U. S. 512, 37 L. ed. 1163, 14 Sup. Ct. Rep. 158; Ehrsam v. Smith, 61 Kan. 699, 60 Pac. 740; Andrews v. National Foundry & Pipe Works, 36 L. R. A. 153, 23 C. C. A. 454, 46 U. S. App. 619, 77 Fed. 774; McCoy v. Quick, 30 Wis. 521; Hassall v. Wilcox, 130 U. S. 493, 32 L. ed. 1001, 9 Sup. Ct. Rep. 590; Southern R. Co. v. Bouknight, 30 L. R. A. 823, 17 C. C. A. 181, 25 U. S. App. 415, 70 Fed. 442; Central Trust Co. v. Charlotte, C. & A. R. Co. 65 Fed. 257; Sioux City Terminal R. & Warehouse Co. v. Trust Co. of N. A. 27 C. C. A. 73, 49 U. S. App. 523, 82 Fed. 124; Newark City Nat. Bank v. Crane (N. J. Eq.) 45 Atl. 975; Voorhees v. Jackson eɔ dem. Bank of United States, 10 Pet. 474, 9 L. ed. 500; Crescent City L. S. L. & S. H. Co. v. Butchers' Union S. H. & L. 8. L. Co. 120 U. S. 141, 30 L. ed. 614, 7 Sup. Ct. Rep.

The state court gave undue effect to the judgment of the state court under which defendant in error claimed title; and also gave undue effect to the decree of the Federal court under which defendant claimed its 472. right by res judicata. Whether the defend- A stockholder is privy to a decree against ant in error obtained such rights or title or lawful possession as it claimed by virtue of such judgment or decree is a Federal question which this court will review.

Reynolds v. Stockton, 140 U. S. 254, 35 L. ed. 464, 11 Sup. Ct. Rep. 773. See also cases above cited.

The plaintiff in error is not estopped to assert its title to the property sold under the mechanics' lien decree, if, as we contend, due effect and due faith and credit only are given to the decree pleaded as res judicata on the question of such title. Both the parties therefore rely upon rights under Federal authority, and, as the right of plaintiff in error was denied by the court, the writ of error lies.

Factors' & T. Ins. Co. v. Murphy, 111 U. 8. 738, 28 L. ed. 582, 4 Sup. Ct. Rep. 679.

The plaintiff in error proved title to the property and franchise of the Oconto water company by the record, marshal's deed, and order of confirmation in the suit brought to force its mechanic's lien.

a corporation, and cannot set up or claim any defense to the action which was available to the corporation, except in case of fraud or collusion, and especially cannot set up collaterally, or in another action, the same defense that was set up and urged by the corporation in the suit in which the decree was entered.

Hawkins v. Glenn, 131 U. S. 319, 33 L. ed. 184, 9 Sup. Ct. Rep. 739; Hancock Nat. Bank v. Farnum, 176 U. S. 640, 44 L. ed. 619, 20 Sup. Ct. Rep. 506; Bissit v. Kentucky River Nav. Co. 15 Fed. 353; Chicago & A. Bridge Co. v. Anglo-American Pkg. & Provision Co. 46 Fed. 584; Hendrickson v. Bradley, 29 C. C. A. 303, 55 U. S. App. 715, 85 Fed. 508; Wilson v. Seymour, 22 C. C. A. 477, 40 U. S. App. 567, 76 Fed. 678; James v. Central Trust Co. 39 C. C. A. 126, 98 Fed. 489; Stutz v. Hundley, 41 Fed. 531; Singer v. Hutchinson, 183 Ill. 606, 56 N. E. 388; Crescent City L. S. L. & S. H. Co. v. Butchers' Union S. H. & L. S. L. Co. 120 U. S. 141, 30 L. ed. 614, 7 Sup. Ct. Rep. 472.

The defendant in error acquired only a party doing work or furnishing material in contract right, if any at all, and not a title the construction of a building or other to the water plant. structure for a quasi public corporation.

Walker v. Whitehead, 16 Wall. 314, 21 L. ed. 357; Barnitz v. Beverly, 163 U. S. 118, 41 L. ed. 93, 16 Sup. Ct. Rep. 1042; Green v. Biddle, 8 Wheat. 1, 5 L. ed. 547; Peninsular Lead & Color Works v. Union Oil & Paint Co. 100 Wis. 488, 42 L. R. A. 331, 76 N. W. 359; H. W. Wright Lumber Co. v. Hixon, 105 Wis. 153, 80 N. W. 1110, 1135. The construction given by a state court to a state statute becomes a part of the statute as though such decision was in Southern P. R. Co. v. United States, 168 terms written therein. The mechanic's U. S. 1, 42 L. ed. 355, 18 Sup. Ct. Rep. 18; lien statute had been construed by the su- Story, Eq. Pl. § 791; 1 Dan. Ch. Pl. & Pr. preme court of Wisconsin to give a lien to a 5th ed. § 661.

An action brought to set aside proceedings on foreclosure of a mortgage in which the defendant, purchaser at the sale, did not seek affirmative relief, but rested upon pure defense, is not a bar to an action instituted by the defendant in the former action Rand v. Cartwright, 1 Ch. Cas. 59; 1 Powagainst the plaintiff therein for possession ell, Mortg. 261; 1 Robbins, Mortg of the premises, inasmuch as the determina- 694; 2 Spence, Eq. Jur. 660-669: tion of the issues in one does not determine Howard v. Harris, 1 Vern. 190; Taskthe issues in the other. er V. Small, 3 Myl. & C. 63; & Story, Eq. Jur. § 1023; Tiedeman, Reaf Prop. § 334; 1 Herman, Mortg. § 20; Hodson v. Treat, 7 Wis. 263; Green v. Dixon, 9 Wis. 532; Bovey De Laittre Lumber Co. v. Tucker, 48 Minn. 223, 50 N. W. 1038; Turman v. Bell, 54 Ark. 273, 15 S. W. 886; Beach v. Cooke, 28 N. Y. 508; Powers v. Russell, 13 Pick. 69; Stevenson v. Edwards, 98 Mo. 623, 12 S. W. 255; Stone v. Welling, 14 Mich. 514; Bradley v. Snyder, 14 Ill. 263, 58 Am. Dec. 564; Compton v. Jesup, 15 C. C. A. 397, 31 U. S. App. 486, 68 Fed. 263.

It does not lie in the mouth of the mort-pending in the Federal court may be in form gagee or purchaser with notice to say, when Federal. But, as the court below said, it is offered his money on redemption, that as to immaterial. The mortgages were valid. Dehim the redeeming creditor has no lien or title, provided the lien or title is valid as against the common debtor.

See authorities supra.

In determining what has been adjudged, the courts will regard the decree, and in case of ambiguity, but not otherwise, will be governed by an accompanying opinion; where it is free from ambiguity it speaks for itself, and cannot be qualified by an opinion by which it may have been preceded.

1 Herman, Estoppel & Res Adjudicata, p. 471; New Orleans, M. & C. R. Co. v. New Orleans, 14 Fed. 373.

Anything in a decision or a decree outside of the issues properly raised in the record is invalid, and is treated as a nullity. Reynolds v. Stockton, 140 U. S. 266, 35 L. ed. 468, 11 Sup. Ct. Rep. 773.

Any attempt to adjudge a paramount title free and clear of any adverse claim, either in Andrews and Whitcomb, or in defendant in error, would have been beyond the issues made by the pleadings, no such affirmative relief having been sought by cross bill or otherwise as a foundation for such adjudi

cation.

fendant in error was in possession through an attempted foreclosure. If, for any reason the foreclosure was void, it still had the right of possession.

Bryan v. Brasius, 162 U. S. 415, 40 L. ed. 1022, 16 Sup. Ct. Rep. 803; Bryan v. Kales, 162 U. S. 411, 40 L. ed. 1020, 16 Sup. Ct. Rep. 802; Cunningham v. Macon & B. R. Co. 156 U. S. 400, 39 L. ed. 471, 15 Sup. Ct. Rep. 361; McCormick v. Herndon, 78 ̊ Wis. 661, 47 N. W. 939.

The question whether the judgment should give affirmative relief is not Federal. There must be a real Federal question to give this court jurisdiction.

Hamblin v. Western Land Co. 147 U. £. 531, 37 L. ed. 267, 13 Sup. Ct. Rep. 353; New Orleans v. New Orleans Waterworks Co. 142 U. S. 79, 35 L. ed. 943, 12 Sup. Ct. Rep. 142; Millingar v. Hartupee, 6 Wall. 258, 18 L. ed. 829.

It is stare decisis in the state court, and res judicata between these parties, that plaintiff in error never in fact had any lien, and had none by judgment estoppel against defendant in error.

Chapman Valve Mfg. Co. v. Oconto Water Chapin v. Walker, 6 Fed. 794; Brande v. Co. 89 Wis. 264, 60 N. W. 1004; Andrews Gilchrist, 18 Fed. 465; Armstrong v. Chemi-V. National Foundry & Pipe Works, 36 L. cal Nat. Bank, 37 Fed. 466; White v. Bow-R. A. 139, 22 C. C. A. 110, 46 U. S. App. en, 48 Fed. 186; Wood v. Collins, 8 C. C. A. 281, 76 Fed. 166, 36 L. R. A. 153, 23 C. C. 522, 60 Fed. 139; Jackson v. Simmons, 39 A. 454, 46 U. S. App. 619, 77 Fed. 774; BunC. C. A. 514, 98 Fed. 768; Washington, A. & G. R. Co. v. Bradley, 10 Wall. 299, sub nom. Washington, A. & G. R. Co. v. Washington, 19 L. ed. 894; Armstrong v. Pierson, 5 Iowa, 317; McConnel v. Smith, 23 Ill. 611. If defendant in error had been aggrieved by the final decree as entered, and had thought that the circuit court had misconstrued the mandate of the court of appeals, or had failed to give full and correct force thereto, or had not granted to it affirmative relief or all the relief possible under the issues made by the pleadings, or had failed to adjudge all that had been considered in the opinions filed by Judge Woods, its remedy was by mandamus or appeal. It is too late now to complain of, or ask unwarranted rights under, such final decree.

combe County v. Tommey, 115 U. S. 128, 29 L. ed. 307, 5 Sup. Ct. Rep. 626, 1186; Chicago & N. W. R. Co. v. Forest County, 95 Wis. 89, 70 N. W. 77; Corser v. Kindred, 40 Minn. 467, 42 N. W. 297; Horn v. Jones, 28 Cal. 195; Jaycox v. Smith, 17 App. Div. 146, 45 N. Y. Supp. 299; Franklin Sav. Bank v. Taylor, 131 Ill. 376, 23 N. E. 397; Dull v. Blackman, 169 U. S. 243, 42 L. ed.. 733, 18 Sup. Ct. Rep. 333; 13 Am. & Eng. Enc. Law, p. 899; New Orleans v. Citizens' Bank, 167 U. S. 371, 42 L. ed. 202, 17 Sup. Ct. Rep. 905.

Re Sanford Fork & Tool Co. 160 U. S. 247, 40 L. ed. 414, 16 Sup. Ct. Rep. 291. Messrs. George G. Greene and Jerome R. North submitted the cause for defend

ant in error:

Although the decrees in the lien and creditors' suit were by Federal courts, the mere question whether and to what extent the determination in the latter suit was a bar does not present a Federal question.

Chouteau v. Gibson, 111 U. S. 200, 28 L. ed. 400, 4 Sup. Ct. Rep. 340; San Francisco v. Itsell, 133 U. S. 65, 33 L. ed. 570, 10 Sup. Ct. Rep. 241.

Where, as here, the plaintiff in error seeks legal relief,-possession of the property and a money judgment, and shows no distinctive ground of equitable relief, the objection is not waived by failure to answer or de

mur.

W. 304; Stein v. Benedict, 83 Wis. 603, 53 N. W. 891; Kilbourn Lodge No. 3 of A. F. & A. M. v. Kilbourn, 74 Wis. 452, 43 N. W. 168; Avery v. Ryan, 74 Wis. 599, 43 N. W. 317; Sullivan v. Portland & K. R. Co. 94 U. S. 806, 24 L. ed. 324.

Burnham v. Norton, 100 Wis. 13, 75 N.

When the common process of the court will not serve, but a new bill and new decree have become necessary to enforce a former decree, equity will not give relief if the former decree is erroneous.

Lawrence Mfg. Co. v. Janesville Cotton Mills, 138 U. S. 552, 34 L. ed. 1005, 11 Sup. Ct. Rep. 402; Wadhams v. Gay, 73 Ill. 415; The question whether the mortgage fore- Gay v. Parpart, 106 U. S. 679, 27 L. ed. 256, closure in the state court was void because 1 Sup. Ct. Rep. 456; Compton v. Jesup, 15 foreclosure of the mechanics' lien was then C. C. A. 397, 31 U. S. App. 486, 68 Fed. 263;

2 Beach, Modern Eq. Jur. § 904, and cases; | Mathwig v. Mann, 96 Wis. 213, 71 N. W. 3 Enc. Pl. & Pr. 604, and notes; O'Connell 105; Rees v. Ludington, 13 Wis. 276, 80 v. Macnamara, 3 Dru. & War. 411; Law- Am. Dec. 741. rence v. Berney, 2 Rep. in Ch. 127.

A purchaser's rights on foreclosure are not affected by knowledge of claims for the At the date of the lien decree, the mortbetterment of the mortgaged property which gagees were in possession claiming right to are not liens paramount to the mortgage. it, and if their foreclosure were void they This is so whether the consideration for the could not be thus evicted. unsecured claims or junior liens went for the construction, existence, or repair of the mortgaged property.