PRITCHARD, Circuit Judge
(after stating the facts as above).^ The facts of this case are numerous and more or less complicated. A consideration of the same has involved much study and investigation on the part of the court. However, in the last analysis, the case, in our opinion, turns on one point, to wit, as to whether the appellant is precluded by the judgment of the Supreme Court of West Virginia, in the case of Shrewsbury, Trustee, v. Horse Greek Coal Land Co., 78 W. Va. 182, 88 S. E. 1052, wherein it was held that:
“J. O. Alderson and R. 0. McClaugberty, on the 3d. day of January, 1898, and for many years previous thereto, were the owners in fee simple of two certain tracts of land, situated on Horse creek, in Boone county, W. Va., one containing 650 acres, and the other 616% acres; the said Alderson owning an undivided two-thirds interest, and the said McOlaugherty owning an undivided one-third interest, therein.”
In that' case appellant failed to avail itself of the opportunity to plead in bar the decree of the Circuit Court of the United States for the Southern District of West Virginia, rendered on the 20th day of July, 1901, in the case of A. P. Eevassor, executor and trustee, against William Thompson, commissioner of school lands for Boone county, W. Va., J. C. Alderson, and others, being the decree upon which appellant now bases its present suit, and upon which it relies to recover. Therefore the question now presented is as to whether the appellant is not now estopped from setting the same up as a means of defeating the appellees.
After the decision of the Supreme Court of Appeals of West Virginia, Alderson, the purchaser of the real estate in question from Shrewsbury, trustee in bankruptcy, filed his bill in the circuit court of Boone county against the appellant and others, for partition of the two tracts of the undivided two-thirds interest in which he had been adjudicated the owner, and for an accounting for waste. In that suit appellant, among other things, set up as a defense the decree of the Circuit Court of the United States for the Southern District of West Virginia, in the case of A. P. Eevassor, executor and trustee, against William Thompson, commissioner of school lands for Boone county, W. Va., J. C.. Alderson, and others, supra, and, referring to the same in its answer, said:
“Defendant files herewith a certified copy of the decree aforesaid in the canse of A. L. Levassor, executor, etc., and others, in the Circuit Court of the [481]*481United States for the Southern District of West Virginia, marked ‘Defendant’s Exhibit No. 2’ and asks that the same be taken and read as a part of this answer. For the reasons aforesaid defendant therefore avers that the acquisition of title by it to the land conveyed to ,T. It. Wingfield, trustee, by W. L. Asliby as aforesaid, was not the purchase of a conflicting claim that would operate for the benefit of plaintiff as cotenant with this defendant, in the event that this court should hold that such cotenancy exists, but that under said conveyance defendant acquired good and indefeasible title to the lands therein conveyed, in which plaintiff and his alleged predecessors in title have not now and have never had any rights or claim, and therefore that it was not Incumbent upon defendant to plead said title in its former answer in said original suits, since the same was never attacked until the filing of plaintiff’s amended and supplemental bill.”
That case was taken to the Supreme Court of Appeals of West Virginia, and the court on the 27th day of November, 1917, announced its decision (81 W. Va. 411, 94 S. E. 716), in which the defense interposed by the appellant is squarely met and decided. The first point in the syllabus is as follows:
“An adjudication by a court having jurisdiction of ihe subject-matter and the parties is final and conclusive, not only as to the matters actually determined, but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action. It is not essential that the matter should have been formally put in issue in the former litigation, but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits.”
Among other things the court in its opinion says:
“But the defendant contends that the Levassor title was not involved upon the former hearing, and that it was not necessary for it to set up that title then in order to get the benefit of it as a defense. It is quite true the plaintiff in that bill did not refer to the Levassor title. He did not rely upon it; in fact, there is no averment in the bill in regard to it, but that fact did not prevent it from becoming a good defense to the bill in toto or pro tanto, as if might cover the whole or a part of the land in controversy. The fact that the plaintiff in his pleading does not set up the defenses which may be made to his case does not preclude the defendant from presenting them, nor does it excuse a failure upon his part to present any defense which he may have that would defeat the claim asserted by the plaintiff. The contention of the defendant was that the plaintiff had no title nor interest in either of these tracts of land. It relied upon the tax sale and the transfer of plaintiff’s title under the provisions of the Constitution to defeat any claim plaintiff might have to the land. It now by its answer says that it has two other defenses, cue of which entirely defeats the plaintiff’s claim to any of this land, to wit, that it has had the adverse possession thereof under color of title for sufficient time to bar plaintiff’s right of recovery; and, second, that it has acquired an outstanding title, which covers a part of these tracts of laud, which title plaintiff is enjoined from claiming under. Why did it not make these defenses in the first suit? They were just as available to it then as they are now; they would have been just as effective then as now. Its defense of adverse possession was just as full and complete then as it is now, and while defendant’s claim of defense under the Levassor title might not extend to defeat the whole of plaintiff’s claim, it would have been just as effective as a defense to the original bill to defeat the claim of plaintiff to that part of the land covered by that title as it could be now. The fact that a defense does not go to defeat the plaintiff's entire right of recovery does not preserve it for future reliance in ease it is not relied upon when the opportunity is given to make it. Ordinarily but one opportunity is given a defendant to make defense, and if he fails to present all of the matters which are available to him to defeat the plaintiffs’ right in whole or in part, he will ho forever barred from [482]*482thereafter presenting them. This seems to be the well-established doctrine of the authorities cited above. We are therefore clearly of the opinion that the court did not err in denying the defendant the right to set up these additional defenses to the bill.”
Thus it will be seen that the Supreme Court of West Virginia has finally settled the law as respects this litigation adversely to the contention of the appellant. The general rule is that, when a court takes jurisdiction of the subject-matter of a particular suit, the parties in interest should raise any and all questions that naturally come within the scope of the issues involved in such controversy.
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PRITCHARD, Circuit Judge
(after stating the facts as above).^ The facts of this case are numerous and more or less complicated. A consideration of the same has involved much study and investigation on the part of the court. However, in the last analysis, the case, in our opinion, turns on one point, to wit, as to whether the appellant is precluded by the judgment of the Supreme Court of West Virginia, in the case of Shrewsbury, Trustee, v. Horse Greek Coal Land Co., 78 W. Va. 182, 88 S. E. 1052, wherein it was held that:
“J. O. Alderson and R. 0. McClaugberty, on the 3d. day of January, 1898, and for many years previous thereto, were the owners in fee simple of two certain tracts of land, situated on Horse creek, in Boone county, W. Va., one containing 650 acres, and the other 616% acres; the said Alderson owning an undivided two-thirds interest, and the said McOlaugherty owning an undivided one-third interest, therein.”
In that' case appellant failed to avail itself of the opportunity to plead in bar the decree of the Circuit Court of the United States for the Southern District of West Virginia, rendered on the 20th day of July, 1901, in the case of A. P. Eevassor, executor and trustee, against William Thompson, commissioner of school lands for Boone county, W. Va., J. C. Alderson, and others, being the decree upon which appellant now bases its present suit, and upon which it relies to recover. Therefore the question now presented is as to whether the appellant is not now estopped from setting the same up as a means of defeating the appellees.
After the decision of the Supreme Court of Appeals of West Virginia, Alderson, the purchaser of the real estate in question from Shrewsbury, trustee in bankruptcy, filed his bill in the circuit court of Boone county against the appellant and others, for partition of the two tracts of the undivided two-thirds interest in which he had been adjudicated the owner, and for an accounting for waste. In that suit appellant, among other things, set up as a defense the decree of the Circuit Court of the United States for the Southern District of West Virginia, in the case of A. P. Eevassor, executor and trustee, against William Thompson, commissioner of school lands for Boone county, W. Va., J. C.. Alderson, and others, supra, and, referring to the same in its answer, said:
“Defendant files herewith a certified copy of the decree aforesaid in the canse of A. L. Levassor, executor, etc., and others, in the Circuit Court of the [481]*481United States for the Southern District of West Virginia, marked ‘Defendant’s Exhibit No. 2’ and asks that the same be taken and read as a part of this answer. For the reasons aforesaid defendant therefore avers that the acquisition of title by it to the land conveyed to ,T. It. Wingfield, trustee, by W. L. Asliby as aforesaid, was not the purchase of a conflicting claim that would operate for the benefit of plaintiff as cotenant with this defendant, in the event that this court should hold that such cotenancy exists, but that under said conveyance defendant acquired good and indefeasible title to the lands therein conveyed, in which plaintiff and his alleged predecessors in title have not now and have never had any rights or claim, and therefore that it was not Incumbent upon defendant to plead said title in its former answer in said original suits, since the same was never attacked until the filing of plaintiff’s amended and supplemental bill.”
That case was taken to the Supreme Court of Appeals of West Virginia, and the court on the 27th day of November, 1917, announced its decision (81 W. Va. 411, 94 S. E. 716), in which the defense interposed by the appellant is squarely met and decided. The first point in the syllabus is as follows:
“An adjudication by a court having jurisdiction of ihe subject-matter and the parties is final and conclusive, not only as to the matters actually determined, but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action. It is not essential that the matter should have been formally put in issue in the former litigation, but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits.”
Among other things the court in its opinion says:
“But the defendant contends that the Levassor title was not involved upon the former hearing, and that it was not necessary for it to set up that title then in order to get the benefit of it as a defense. It is quite true the plaintiff in that bill did not refer to the Levassor title. He did not rely upon it; in fact, there is no averment in the bill in regard to it, but that fact did not prevent it from becoming a good defense to the bill in toto or pro tanto, as if might cover the whole or a part of the land in controversy. The fact that the plaintiff in his pleading does not set up the defenses which may be made to his case does not preclude the defendant from presenting them, nor does it excuse a failure upon his part to present any defense which he may have that would defeat the claim asserted by the plaintiff. The contention of the defendant was that the plaintiff had no title nor interest in either of these tracts of land. It relied upon the tax sale and the transfer of plaintiff’s title under the provisions of the Constitution to defeat any claim plaintiff might have to the land. It now by its answer says that it has two other defenses, cue of which entirely defeats the plaintiff’s claim to any of this land, to wit, that it has had the adverse possession thereof under color of title for sufficient time to bar plaintiff’s right of recovery; and, second, that it has acquired an outstanding title, which covers a part of these tracts of laud, which title plaintiff is enjoined from claiming under. Why did it not make these defenses in the first suit? They were just as available to it then as they are now; they would have been just as effective then as now. Its defense of adverse possession was just as full and complete then as it is now, and while defendant’s claim of defense under the Levassor title might not extend to defeat the whole of plaintiff’s claim, it would have been just as effective as a defense to the original bill to defeat the claim of plaintiff to that part of the land covered by that title as it could be now. The fact that a defense does not go to defeat the plaintiff's entire right of recovery does not preserve it for future reliance in ease it is not relied upon when the opportunity is given to make it. Ordinarily but one opportunity is given a defendant to make defense, and if he fails to present all of the matters which are available to him to defeat the plaintiffs’ right in whole or in part, he will ho forever barred from [482]*482thereafter presenting them. This seems to be the well-established doctrine of the authorities cited above. We are therefore clearly of the opinion that the court did not err in denying the defendant the right to set up these additional defenses to the bill.”
Thus it will be seen that the Supreme Court of West Virginia has finally settled the law as respects this litigation adversely to the contention of the appellant. The general rule is that, when a court takes jurisdiction of the subject-matter of a particular suit, the parties in interest should raise any and all questions that naturally come within the scope of the issues involved in such controversy. In other words, by this rule it is sought to reach a speedy determination of all questions that are raised or could be raised, so as to secure a final determination of all matters coming within the scope of the issues involved in such controversy. 'If this were not the rule, we would have chaos and uncertainty, and as a result litigants would be left in doubt as to whether the judgment obtained was conclusive and binding. As was well said in the case of Southern Pacific R. R. Co. v. U. S., 168 U. S. 1, 18 Sup. Ct. 18, 42 L. Ed. 355:
“The general principle announced in numerous cases is that a right, question, or fact distinctly put in issue, and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies; and, even if the second suit is for a different cause of action, the right, question, or fact once so determined must, as between the same parties or their privies, be taken as conclusively establisned, so long as the judgment in the first suit remains unmodified. This general rule is demanded by the very object for which civil courts have been established, which is to secure the peace and repose of society by the settlement of matters capable of judicial determination. Its enforcement is essential to the maintenance of social order; for the aid of judi-¡' cial tribunals would not be invoked for the vindication of rights of person and property if, as between parties and their privies, conclusiveness did not attend the judgment of such tribunals in respect of all matters properly put in issue and actually determined by them.”
The rule announced by the West Virginia court is borne out by the Supreme Court of the United States in the case of Dowell v. Applegate, 152 U. S. 327, 14 Sup. Ct. 611, 38 L. Ed. 463. There the plaintiff, Applegate, instituted a suit against Dowell in a state court to enjoin him from asserting title or claim by virtue of his deed under a decree of the federal court to a certain tract of land. Prior to1 the in- ■ stitution of the suit Dowell had brought suit in the federal court against Jesse Applegate, Daniel W. Applegate, and others to vacate as fraudulent a certain deed to the said Daniel W. Applegate from his father, Jesse Applegate, for a certain tract of land. The deed was vacated, and all the interest of Jesse Applegate in the tract of land of 121.55 acres was decreed to sale, sold, and purchased by and conveyed to Dowell. Some time subsequent to the said purchase Daniel W. Applegate brought a suit against Dowell, alleging that, prior to the commencement of Dowell’s suit in the federal court, one W. H. H. Applegate had conveyed to Daniel W. Applegate a tract of 40 acres of land, being a part of said tráct of 121.55 acres, and asserting that his title to the 40 acres was paramount to the claim of Dowell, and that the same was not affected by the suit and decree in the federal court [483]*483under which Dowell purchased, as the validity of the deed from W. H. H. Applegate to Daniel W. Applegate was in no wise put in issue or determined hy the decree in question. Dowell averred in his answer that the deed under which plaintiff now claims was put in issue in the suit in the federal court and determined by its decree. Mr. Justice Harlan, after stating the facts, said:
“It is disclosed by the present suit that, when Daniel W. Applegate answered Dowell’s bill, he held the deed oí October 8, 1874. If Daniel W. Applegate became, when taking that deed, a bona flde purchaser of the 40 acres of land now in dispute, and if the title so acquired was superior to Dowell’s right to have that land sold for his demands against Jesse Applegate, it behooved him to assert that title in defense of the suit brought against him. The very nature of that suit required him to assert whatever interest he then had in the lands, or any part of them, that was superior to any claim of Dowdl upon them, whether by judgment liens or in any other form. So far from pursuing that course, he forobore — purposely, as may now bo inferred — to claim anything in virtue of the deed of October 8, 1874, and long after the decree under which Dowell purchased, ho comes forward with a new, independent suit, based alone upon that deed, as giving him a superior title. His object is — certainly, the effect of his suit, if it be sustained, will be — to retry the issues made in Dowell’s suit, so far as they involved the latter’s claim to have the 40-acre tract subjected to his demands. The decree in the federal court was an adjudication, as .between all the parties to the suit in that court, that Dowell was entitled, in satisfaction of liis claims against Jesse Applegate, to subject to sale all the lands his bill sought to reach, which the decree directed to be sold; and that decree, never having been modified by the court that rendered it, nor by this court upon appeal, necessarily concludes every matter that Daniel W. Applegate was entitled, under the pleadings, to bring forward in order to prevent the sale of the lands claimed by him, by whatever title. Having remained silent as to the deed of October 8, 1874, and having allowed thp suit in the federal court to proceed to final decree upon the question as to whether the lands described in the "bill could be subjected to Dowell’s demands — which description included the 40 acrés here in dispute — and having been defeated upon that issue, and the decree having been fully executed, lie cannot have the same issue retried in an independent suit, based solely upon a title that he was at liberty to set up, but chose not to assert, before the decree was rendered.”
It is well settled that a judgment is conclusive upon the questions actually contested and determined, and also upon all matters which might have been litigated and contested in the suit. Phelan v. Gardner, 43 Cal. 306; Rogers v. Higgins, 57 Ill. 244; C. & O. Canal Co. v. Gittings, 36 Md. 276. There are many other questions presented by the assignments of error, which, in our opinion, are immaterial in the view we take of this matter. Therefore we have, not deemed it necessary to enter into a discussion of the same.
Considering the whole record, and the decision of the Supreme Court of Appeals of West Virginia, which we find in perfect harmony with the decisions of the Supreme Court of the United States, it necessarily follows that the decree of the court below should be affirmed.