dissenting. — I regret that I am unable to agree with the disposition which my colleagues made of this case. I would sustain the exceptions because I believe both the “rule of comity” and rule of res adjudicata require us to do so.
There is no question that as a court of equal or concurrent jurisdiction we are ordinarily not bound by any precedents of the courts of common pleas of this or any other county, and need only follow them insofar as their reasoning may appeal to us as sound, and not at aíl where any decision of theirs is contrary to one of our own. It seems to me, however, that this is a case in which the important rule of comity should be applied. The purpose of this rule is to prevent the administration of justice being brought into disrepute by unseemly conflicts between *203courts of coordinate or concurrent jurisdiction. This rule requires the acceptance of the judgment of that court which first takes jurisdiction of the same subject matter.
In this case the question before the Court of Common Pleas No. 4 in In re 52d and Walnut Streets, 27 D. & C. 587, was whether certain moneys collected by a trustee for bondholders in possession of mortgaged premises were distributable as income (i. e., as a payment on account of interest) or as principal. The question thus involved the interpretation of the trust deed by which the premises were mortgaged. President Judge Finletter of that court decided that rent moneys so received by the trustee in possession of the mortgaged premises were income and applicable to interest only.
In Robb’s Estate, 26 D. & C. 376, this court held that rent collected by a trustee for a bond issue who took possession of mortgaged premises, while ordinarily distributable as income, was by reason of the express language of the deed of trust distributable pro rata between interest and principal. The relevant clauses of the deed of trust, there interpreted, while not of the same deed nor with respect to the same mortgaged property, were of a deed drafted in identical language to that used in the deed of trust now before this court.
In the case before us, the Court of Common Pleas No. 4 first took jurisdiction; the instrument interpreted by that court is the same instrument now before us; it is secured on the same property and involves the distribution of part of the same fund distributed by Judge Fin-letter, and the parties or their privies are the same. We should therefore accept the interpretation laid down by Judge Finletter as the law of the case, even though we might have interpreted the instrument differently had the matter been before us in the first instance. For us to hold otherwise seems to me to cause that unseemly conflict which the rule of comity is designed to avoid and with it the ridiculous aspect of rents being regarded as income in one court, and not in another. It should not be that *204money distributed to a fiduciary as income in one court, by some species of legal legerdemain, becomes principal in another.
There is another reason equally cogent which impels me to dissent, and that is the doctrine of res adjudicata. The judgment of the Common Pleas Court No. 4, involving as it does the question of proper distribution of money under its control, is a judgment in rem. The doctrine of res adjudicata applies with full force to judgments in rem: Hamner v. Griffith’s Admr., 1 Grant 192 (1854); and such judgments are conclusive against the whole world: Whitaker’s Estate, 10 W. N. C. 106.
Aside from being a judgment in rem, the subject matter of litigation concerning which it was rendered is the same, and the parties here were parties or were represented by their privies there. In this connection the language of the late Mr. Justice Simpson in O’Connor et al. v. O’Connor et al., 291 Pa. 175, quoting largely from the opinion of Chief Justice Kephart in Hochman v. Mortgage Finance Corp. et al., 289 Pa. 260, in answer to the contention there made that the cestuis que trustent were not represented in the proceedings claimed to be res adjudicata, is pertinent:
“It follows that there was privity of estate between the trustees and the collateral heirs, and, insofar as the trustees are estopped by the findings and decree in the prior proceeding, the collateral heirs are also, for such findings and decrees are res adjudicata as against privies as well as parties: Loyal Orange Institution v. Morrison, 269 Pa. 564; Hochman v. Mortgage Finance Corporation, 289 Pa. 260. This binding effect of the prior adjudication is not ‘defeated by minor differences of form, parties or allegations, [nor] by a shuffling of plaintiffs on the record, or [nor] by a change in the character of the relief sought, . . . [and concludes] not only the issues actually adjudicated in the first proceeding, but also those [relevant ones] which might have been raised and *205passed upon’: Hochman v. Mortgage Finance Corporation, supra, pages 263-4.
“That plaintiffs herein are privies in estate to the trustees, is not an open question. As said by Judge Hare, approved by this court, in Appeal of Third Reformed Dutch Church, 88 Pa. 503, 505: ‘Judgments not only bind parties but privies, or, in other words, persons who, though not actually before the court, are yet in contemplation of law represented by those who appear or have been duly summoned.’ ‘Privies are those whose relationship to the same right of property is mutual or successive. In other words, privity denotes mutual or successive relationship to the right of property, title or estate. It may be in blood, in law, or in estate’: Strayer v. Johnson, 110 Pa. 21, 24. ‘All persons are privies to a judgment, whose succession to the rights of property adjudicated or affected, are derived through or under some one of the parties to the action. ... To render a decree conclusive it is not necessary to be against one by name; it is enough that it is against his interest’: Newbold’s Est., 65 Pa. Superior Ct. 151, 155.”
See also Tourison’s Estate, 321 Pa. 299.
By the application of these sound precedents we would avoid a decision which in effect changes the character of a fund already adjudged by a court of competent jurisdiction to be income into principal despite the fact that there are no extraneous circumstances before us warranting our so holding. For these reasons I would sustain the exceptions.