Page:Federal Reporter, 1st Series, Volume 9.djvu/194

FLANAGIN V, THOMPSON. 179 �" The sole question to be determined in this cause is wliether the pro- ceeds of sale applicable to the Flanagin tnortgage should be awarded to Mrs. Flanagin, or to the Easton National Bank. I am satislied from the evidence that William S. Flanagin, on the sixteenth of December, 1872, with the consent and by the authority of his wife, Mrs. M. M. Flanagin, deposited said mortgage, and accompanying bond, as collateral security l'or the payaient of a note for ^7,000, discounted , f or him by said bank on that day, and also that the note, in these proeeedings mentibned, is a renewal of said note. It is thereupon, this eleventh day of March, 1880, ordered," etc. �The order overrules the exceptions of Mrs. Flanagin to the account award- ing the f und to the bank, and directs the trustee to pay the bank. From this order Mrs. Flanagin appealed, and the record having been transmitted to the court of appeals of Maryland and the case having been heard there, the order of the county court was afflrmed. The opinion of the court of appeals is in the record, and leaves no rooin for doubt but that the same question viras con- sidered and adjudicated by that learned tribunal. In the opinion of the court itls said: : �"The question for decision in this case arises upon the auditor's reports distributing the proceeds of sale of certain real estate, and this contest is over the right to the balance of purchase money in the hands of the trustee after paying flrst liens. At the hearing all the other objections were waived except the one aflEecting the right of the Easton bank to claim the fund as against the appellant. The appellant claims as mortgagee of the land. The appellee clajms on the ground that appellant's mortgage and the bond which the mortgage secnred were assigned to the bank as collateral security for a note of appellant's husband and others, which has not been paid." �After very fully discussing the facts with regard to the renewals of the note, and the law applicable to them, the court holds that the transaction was not a payment of the flrst note, but was an extension of credit, and simply a renewal of the loan; that the parties never intended to pay the flrst note, and that it never had been paid. �The court, as a further ground for atfirming the Judgment below, held that as Mrs. Flanagin had indorsed the bond and mortgage in blank, and given them to her husband to dispose of, she had put it in his power to pledge them for each of the successive renewals ; and, as she had actual knowledge that he had obtained the loan from the bank on a pledge of them, and made no objec- tion until the auditor's account was stated, she could not then be heard to object. �The bank now contends that the foregoing judgment is conclusive of the issue raised in the present case. �The eomplainant contends that the subject-matter of the controversy is not the same; that the evidence adduced is not the same; and that, therefore, the doctrine of estoppel by res orfjMdfcafa cannot apply. �The question of what requisites are essential to render a juclgment in one case conclusive in another case, has been of late years very frequently before the supreme court. That court uniformly has held that it was sufiicient, if, in the first case, the same question or mat- ter in dispute had been necessarily in issue and decided between the BamepartieSf ;: Thu.s, in Campbell v. Rankin, 99 TJ. S. 263, it is said : ��� �