Appeal from the Circuit Court of the United States for the Northern Division of the District of Washington.

This suit was brought in the United States Circuit Court for the District of Washington on March 15, 1897, by the appellant, a British corporation, against Dexter Horton & Co., Bankers, a corporation organized under the laws of the state of Washington, and other lienholders, for a foreclosure of all of the appellees' right, title, lien, and equity of redemption in and to certain lands in the state of Washington. An amended bill of complaint was filed August 1, 1898. The only defendant appearing to contest the complainant's alleged right was the corporation Dexter Horton & Co., Bankers. The court below, upon hearing on the merits, made its decree in favor of the appellee. From this decree the appellant brings the case to this court.

The evidence is largely documentary, involving proceedings in four distinct actions. On September 15, 1877, the Meigs Lumber & Shipbuilding Company, a California corporation, executed to D. A. McKinley and J. McKinley, citizens of California, its note for $30,802.25, and on January 11, 1878, a second note in the sum of $6,000, both of which notes were transferred to the appellant, then engaged in the business of banking in San Francisco. The appellant, on February 8, 1878, before the maturity of either of said notes, granted said Meigs Lumber & Shipbuilding Company an extension of time thereon, in consideration of which said company made to one Arthur Scrivener, as trustee for appellant, a mortgage upon the lands in suit, consisting of about 7,167 acres of timber lands, lying in Kitsap and Mason counties, in the state (then territory) of Washington. This mortgage was duly acknowledged and certified, under the laws of the then territory of Washington, after its execution, so as to entitle it to be recorded, and was duly recorded in the office of the auditor of said Kitsap county, territory of Washington, on February 21, 1878, in the records of said county. On February 6, 1880, the Meigs Lumber & Shipbuilding Company conveyed to William P. Sayward the lands in suit. The notes remaining unpaid, the appellant and Scrivener, trustee, brought suit to foreclose the mortgage on December 15, 1880, in the territorial court, against the Meigs Lumber & Shipbuilding Company, W. P. Sayward, Dexter Horton and Arthur A. Denny, partners doing business under the firm name of Dexter Horton & Co., and others, which suit was, however, dismissed on November 21, 1881, without prejudice to the complainants therein by reason of the complainant corporation having failed to file a certified copy of its articles and an appointment of an agent with the Territorial Secretary, as required by the laws of the territory.

A second suit to foreclose the mortgage was instituted on January 16, 1882, by Scrivener, trustee, in the District Court of the Territory of Washington, Third Judicial District, having jurisdiction of suits in respect to lands in Kitsap county, against the Meigs Lumber & Shipbuilding Company, W. P. Sayward, Dexter Horton and Arthur A. Denny, partners doing business under the firm name of Dexter Horton & Co., and a number of subsequent lienholders. The defendant company therein was personally served with process on the day following the commencement of the suit. Dexter Horton & Co., partners, entered their voluntary appearance January 17, 1882, and W. P. Sayward was served by publication beginning January 20, 1882. The Meigs Company entered a general demurrer to the complaint on April 6, 1885, no earlier interlocutory proceedings being shown by the record. Separate answers to the bill were filed by the Meigs Company and W. P. Sayward on October 4, 1888, and on the 12th of the same month the complainant therein filed separate motions to strike out parts of the answers of said defendants. These motions to strike out parts of the answers remained undisposed of until November, 1889, at which time the territory of Washington was admitted into the Union as a state, whereupon, pursuant to its enabling act, complainant filed a request for the transfer of the cause to the United States Circuit Court for the District of Washington. There was a delay in the appointment of a federal judge for the new district, and it was not until January 13, 1891, that the complainant filed in the federal court a motion for leave to withdraw his pending motions to strike out parts of the answers of the defendants named and permitting him to except thereto,

on which day the federal court ordered the cause to be docketed in that court, and gave a separate order requiring defendants to show cause why the motion should not be granted. On the return day of said order the federal court made an order that the parties replead throughout, denying complainant's motion; but, upon further consideration, the court of its own motion remanded the cause to the superior court of King county, Wash., on April 8, 1891, and the record was certified back to that court on December 2, 1891. The next step in the proceedings appearing in the record is a motion for change of venue from King county to Kitsap county, on November 22, 1893, by reason of the latter having been given a judicial organization separate from the former, which motion, after contest by the defendants therein, was denied December 9, 1893.

On January 8, 1894, a supplemental bill was filed, pleading two judgments against the defendant Meigs Lumber & Shipbuilding Company, which had been obtained by suits in the state court in California upon the notes which furnished the consideration for the mortgage upon the lands in suit. The first of these suits was begun by appellant on February 6, 1882, a short time after the institution of the action to foreclose the mortgage by Scrivener, upon which suit judgment was given for the bank on November 10, 1883. The debt evidenced by this judgment was kept alive by a suit by Scrivener (to whom the first judgment mentioned had been assigned), brought on September 7, 1888, upon which suit Scrivener recovered the second of the two judgments pleaded.

During the year following the filing of the supplemental bill, answers to the bill and supplemental bill, and replications thereto, were filed, and the cause was finally at issue on April 17, 1895. A trial was had, and on February 17, 1896, judgment was rendered in favor of Scrivener for a total amount of $123.049.15, and decreeing the foreclosure of the mortgage on the lands in suit. The mortgaged lands were sold at sheriff's sale on August 12, 1896, to Scrivener, and certificates of sale issued accordingly, and the report of sale confirmed by the court. The statutory period of redemption had not elapsed at the time of the bringing of the suit at bar, and a sheriff's deed has not as yet been issued. Pending these proceedings under the decree of foreclosure, Scrivener had assigned to the appellant bank the notes upon which the suit was brought in the state court of California, the judgments obtained therein (together with a third judgment obtained upon suit brought upon the second of said judgments, which third judgment had been entered on March 12, 1894), and the mortgage on which the foreclosure suit was based, as well as the decree rendered in the same and his interest in the mortgaged premises. No execution was ever issued upon the judgments obtained in California, and no payments appear to have been made in satisfaction of any part of the indebtedness for which these judgments were entered. It is out of the foreclosure suit and the facts above set forth that the appellant claims to derive, by assignment, its title to the lands in suit. The appellee, Dexter Horton & Co.. Bankers, a corporation, on the other hand, sets up title to the lands in question through an execution sale, under a lien of attachment, in a suit brought by it in the federal court in Washington on January 6, 1892, against W. P. Sayward, the grantee, as before stated, of the Meigs Lumber & Shipbuilding Company, the original mortgagor of the lands in question to appellant's assignors. The basis of this suit was certain assigned claims against W. P. Sayward, and the attachment covered all of the lands here in suit. Judgment was recovered in that suit July 23, 1894. This judgment was subsequently affirmed, upon appeal, by this court, and the lands were thereupon levied upon and sold thereunder on June 26, 1896, and a marshal's deed issued to the appellee as purchaser on December 7, 1898, based upon that sale.

It is alleged in the bill of complaint in the present action that at the time when said suit to foreclose said mortgage was brought, and for many years thereafter, it was credibly believed and supposed by the complainant and its trustee, and said trustee's attorneys and counsel, that a due notice of pendency in said action for foreclosure, according to the then statute of said territory, had been properly filed and recorded, and remained of record in the records of said Kitsap county, and said attorneys and counsel still believed that such was the fact, and that they could make due proof thereof,

until after said judgment was entered; and if such were the case, and such notice of pendency of said action could have been proved, all subsequent lienors, by judgment or otherwise, and all persons acquiring any subsequent title or interest in said mortgaged premises, although not named as defendants in said former action, would have been duly bound by said judgment, and barred and foreclosed of all right and interest in said premises, except the usual right of redemption for one year after sale, by said sale; that complainant has since then ascertained, upon careful search and inquiry, that either no such notice was filed and recorded as it had supposed, or that, by reason of loss or destruction of the records of said Kitsap county, it is impossible to prove that fact; that in consequence thereof all of the defendants named, each of whom has acquired by judgment, deed, or otherwise, since said mortgage was recorded, and before the entry of said judgment, some apparent lien, interest, right, or title upon or in said mortgaged premises, or some part thereof, still appear of record not to have been bound by said judgment or foreclosed by said sale, and still appear to have some such lien, interest, right, or title, and therefore their said apparent rights under the judgments and deeds which they have acquired constitute clouds upon the title of complainant and impair its rights, and render said judgment and said sale ineffectual to vest in complainant the title in fee to said premises, subject only to the statutory right of redemption, which title it otherwise would have; that each of said defendants, for his or her or its several and respective interests, pretends that said judgment and sale are ineffectual, and a new judgment of foreclosure and a new sale must be had, in order to duly foreclose said mortgage, and they or some of them pretend that said mortgage was invalid by reason of the failure of complainant to file a copy of its charter in the office of the Secretary of State of said territory before the mortgage was made, and that its rights in that behalf, in a certain former suit brought before the suit above stated, have been duly and finally adjudged against complainant, and that the lien of said mortgage and complainant's rights therein have been discharged by the merger of said notes in sundry judgments in the courts of California against said Meigs Lumber & Shipbuilding Co., and that said notes were without consideration and were fraudulent, and their transfer to complainant was fraudulent or was never made in fact, and that complainant had parted with all rights in said notes and mortgage before said suit was brought to trial, together with sundry other false pretenses, all of which complainant avers were and are contrary to the facts, and were duly adjudged in complainant's favor in and by said judgment, after the same had been pleaded by said mortgagor and by said Sayward, the grantee in said former suit, and had been fully and duly tried against said mortgagor and its grantee, under whom all of the defendants herein must claim and do claim, and with whom all of said defendants were and are privy in respect of said judgment and of the mortgaged premises; that complainant is advised by its counsel and verily believes, in consequence of said facts and of the adjudication upon all said pretended defenses above stated in and by said judgment, which still remains of record unreversed and unappealed from (an appeal to the Supreme Court of said state having been taken, and thereafter dismissed and adjudged to be void and ineffectual to confer jurisdiction upon said appellate court), and which still remains wholly unpaid by any of the defendants in said former action or in this suit, except so far as the same has been paid in part by the sale of said lands, all of the defendants are debarred and forever estopped by said judgment to set up any of said defenses or any other defense, but they are all entitled to their day in court for the purpose of having the court determine a time within which they may redeem said mortgaged premises from said sale, either as an entirety or in parcels, upon such showing of their several and respective rights as they may make. It is further alleged that the defendant Dexter Horton & Co., Bankers, claims title in fee to the whole of the premises here in suit by virtue of a deed of the United States marshal made in pursuance of a sale upon execution issued out of the Circuit Court as a court of common law in a certain action brought by said defendant Dexter Horton & Co., Bankers, as plaintiff, against said William P. Sayward, as defendant, and wherein his title and interest in said lands and other lands had been attached, and under said final process of execution was sold and

deeded by said marshal to said Dexter Horton & Co., Bankers, as purchaser at said sale; that said Dexter Horton & Co., Bankers, claim such title in fee to be free of the lien of the complainant's said mortgage and foreclosure judgment and sale, by reason of the several pretenses and alleged defenses mentioned, and is the principal defendant in the case, and the only defendant having any apparent or pretended interest in the whole of the premises in suit, and the interests of all the other defendants are small or partial, and are subsidiary as well to that of said Dexter Horton & Co., Bankers, as to the title of the complainant, and that said William P. Sayward was the grantee in fee of said premises from said mortgagor Meigs Lumber & Shipbuilding Company in or about the year 1878, and by said deed of conveyance pretended to acquire said title free of the lien of said mortgage; that said Sayward remained such owner in fee of said premises at all times thereafter until the same was taken from him by due process of the Circuit Court, and vested in the defendant Dexter Horton & Co., Bankers, as alleged. It is further alleged that the corporation of Dexter Horton & Co., Bankers (which commenced business June 1, 1886), is the successor by assignment of the former partnership of Dexter Horton and Arthur A. Denny, copartners as Dexter Horton & Co., who were made defendants in the former action. This allegation of the bill of complaint is denied in the answer of Dexter Horton & Co., Bankers, and certain transactions are set forth which resulted, as alleged, in the judgment obtained by it against W. P. Sayward.

The relief prayed for in the bill is that "it may be decreed upon due proofs taken that said judgment in said former suit of Arthur Scrivener v. said Meigs Lumber & Shipbuilding Company and others is binding upon all of the defendants so far as any of the defenses therein pleaded, or any other defenses which might have been pleaded thereto by any of the defendants therein, are concerned, and that each of the defendants is estopped thereby, being privy to the mortgagor and grantee of said lands, who were defendants in said suit and judgment; and that the rights and interests of all the defendants, if any they have, are subject and subordinate to said mortgage and judgment, and that they and each of them, according to their several and respective liens, interests, rights, and titles upon or in the whole of said mortgaged premises, or any several parts thereof, have no rights therein as against your orator, except the right of redemption of the whole premises, or such several parts thereof as they may be interested in from said judg ment and sale, at such time and on such terms as shall be decreed by the court to be just; and that a certain short date may be named before which they and each of them, according to their several and respective rights and interests, may be required to pay the amount of said judgment, or the amount which the court, according to their several equities, may determine that any defendant or defendants, apart from the rest, is equitably entitled to pay for any several parcel or parcels, and after which date they shall be finally and forever barred and strictly foreclosed of all right, title, lien, and equity of redemption, and your orator's title may become perfect in fee as against each of the defendants failing to redeem as aforesaid." Also that complainant may have such other or further relief as the equity of the case may require, and as to the court may seem meet.

It appears from the evidence in support of the bill that in the second foreclosure suit of January 16, 1882, no lis pendens appeared of record until November 22, 1894, in Kitsap county, and April 15, 1898, in Mason county, though the appellant's testimony discloses the fact that it had always been supposed by the solicitors for Scrivener that a lis pendens had been filed at the commencement of the action by the member of the firm having the matter in charge, and who was dead when it was discovered that the record did not show such a notice. The appellee alleges that it did not have any knowledge of this mortgage, or the commencement or pendency of the foreclosure suit, until after the fixing of the supersedeas bond on the writ of error to the United States Circuit Court of Appeals in the suit of Dexter Horton & Co., Bankers, against W. P. Sayward. This supersedeas bond was dated September 26, 1894. The appellant paid the taxes upon the property described in the bill of complaint for the years 1897, 1898, and 1899, amounting to $8,667.18.

Upon the filing of the memorandum of decision by the court below, from which it appeared that one of the grounds for such decision was that the appellant was not entitled to a strict foreclosure as against the appellees, appellant moved for leave to amend the prayer of its second amended bill by inserting therein a clause in the alternative, praying that, if it were held that appellant was not entitled to a strict foreclosure, it might have a general foreclosure decree as against the appellees. This motion was denied by the court, and upon the same day a decree was filed in favor of Dexter Horton & Co., Bankers, the contesting appellee. In this decree it was adjudged that the appellant had no right to a strict foreclosure or lien upon, or title to, the premises described in the second amended bill of complaint by virtue of the mortgage therein mentioned, and that all liens upon or title to said lands by it formerly had, under or by virtue of the mortgage, had become extinguished by lapse of time under the statutes of the state of Washington, and also by nonprosecution of the former suit to foreclose said mortgage as against Dexter Horton & Co., Bankers, the principal defendant in the case, and all persons claiming under it; and that by reason of said matters the case be dismissed, except for the purposes of an equitable lien upon the lands in appellant's favor for the amounts which it had paid in discharge of all taxes accrued upon the lands, with interest at 7 per cent. per annum from the dates of the several payments, which payments and interest, it was adjudged, amounted to the sum of $11,015.47.

Charles E. Shepard, Thomas R. Shepard, and Burke, Shepard & McGilvra (M. M. Lyter, of counsel), for appellant.

E. F. Blaine, for appellee Dexter Horton & Co., Bankers.
Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW, Circuit Judge, after the foregoing statement of facts, delivered the opinion of the court.

The appellee acquired its title to the land in controversy during the pendency of the foreclosure suit, but it claims that it is not bound by the judgment in that suit, because it was not made a party to it, and was not made subject to it by lis pendens. The law of the state of Washington relating to lis pendens, applicable to this case, is as follows:

"In an action affecting the title to real property the plaintiff, at the time of filing the complaint, or at any time afterwards, or whenever a writ of attachment of property shall be issued, or at any time afterwards, the plaintiff or a defendant when he sets up an affirmative cause of action in his answer and demands substantive relief at the time of filing his answer, or at any time afterwards, if the same be intended to affect real property, may file with the auditor of each county in which the property is situated a notice of the pendency of the action, containing the names of the parties, the object of the action, and a description of the real property in that county affected thereby. From the time of the filing only shall the pendency of the action be constructive notice to a purchaser or encumbrancer of the property affected thereby, and every person whose conveyance or encumbrance is subsequently executed or subsequently recorded shall be deemed a subsequent purchaser or encumbrancer, and shall be bound by all proceedings taken after the filing of such notice to the same extent as if he were a party to the action." Section 4887, Ballinger's Ann. Codes & St. Wash.

The appellants supposed that a lis pendens was filed at the time of the commencement of the foreclosure suit, but it was only able to show the fact that a lis pendens was filed at a later date, namely, in Kitsap county, where a portion of the lands are situated, on November 23, 1894, and in Mason county, where the remainder of the lands are located, on April 15, 1895. The appellee admits that it had