This action embraces lot three, in block eighty-one, and is in all respects similar to, and as to the litigated points, was submitted on the same evidence as the ease of Starr v. Stark [Case No. 13,317], except that the lot in this case was not embraced in the former action, the decree in which was claimed to be a bar in the other case. The proceedings in the former action, however, are set up and claimed to be a bar in this case, on the' ground that the same questions might have been directly litigated in that action between the same parties; and that the decree is as conclusive in this case as in the other. There can be no doubt, I think, that the decree upon the title actually litigated and determined in that case — the title derived through the patent to the city — is conclusive in this action. But there can, certainly, be no ground for holding it conclusive upon those matters not in issue, and not litigated or determined, whatever may be the effect of that decree upon- the title to the lots actually involved in the decision. The land in question here is a different subject matter, and the parties are certainly not bound to litigate all their claims to this lot in an action about another lot, although the various chains of title to that other are the same. If the parties do, in fact, put the entire title in issue, and it is’ determined, the determination will be conclusive. But I know of no authority which goes so far as to sustain the position taken by defendant’s counsel in this case.
The other questions are precisely the same as those discussed in Starr v. Stark [supra], and upon the authority of that case there must be a decree for the complainant in pursuance of the prayer- of the bill, with costs, and it is so ordered. '
DEADY, District Judge, dissented -on -the second point indicated in his dissent in Starr v. Stark [supraj.