(dissenting.)
I concur in tbe dissent of Mr. Justice Holt.
Tbe decree in tbe Federal court determined that Mary B. Donovan bad no title. Tbe court bad jurisdiction of tbe subject matter and of Donovan. Its judgment, right or wrong, was conclusive except when directly questioned. Davis and Sands were not parties to tbe action. They are not bound by tbe decree except as purchasers from Donovan. But, and this is their trouble, they have no estate or interest in tbe land, to protect which they may assail its validity or effect.
The quitclaim deed from Donovan to Davis and Sands, executed after the decree, conveyed nothing to them. Donovan bad nothing to convey. A purchaser from her was bound by tbe decree adjudging that she was without title.
Nor did tbe judgment in some way put in Davis and Sands, or leave available to them, since they were not parties, tbe title or claim of title coming to them through tbe Indian, which they bad conveyed to Donovan, so that they can assert title through tbe Indian as a mixed-blood. This is their necessary but unsustainable contention.
This feature o'f tbe case may be illustrated in this way: Suppose that Davis and Sands when they conveyed to Donovan bad taken a *461purchase money mortgage to secure a deferred payment; or suppose that Donovan after getting title bad given a loan mortgage. In each of such cases the mortgagee, not being a party to the action, would not be bound by the decree. After the Donovan title had been extinguished by the government action he could still litigate the title to protect his mortgage interest. But the plaintiffs here have no interest in the land. Let it be supposed that the deed from Davis and Sands to Donovan were without covenants, or, though with covenants that Donovan had acquiesced in the decree and made no claim for a breach. It would not be claimed in such a case that Davis and Sands, who had conveyed to Donovan, had an estate or interest in the lands through the deed from the Indian. If they have any now it is because of their responding to a claim for a breach of their covenants by a settlement; but clearly that gives them no right in the land. In a suit on the covenants they could have successfully defended by showing that the Indian was a mixed-blood,- for the judgment did not bind them. If they successfully defended, there was an end of the controversy; and by it they got no title to the land. If they were unsuccessful in the defense it would be because the Indian was found a full-blood, and then they ought to be defeated. This would end the controversy; but they would get no title by it. They would not be vested with title whatever their defense was and whether they were successful or unsuccessful. In no way can they attach themselves to the chain of title. They are strangers to it. They have no estate or lien. They are not entitled to litigate with anybody over it. There is now just one effective chain of title, that starting in the deed from the Indian to the plaintiffs. That prevails. If the defendants have suffered a loss by paying damages for a breach of their covenant, it cannot now be remedied, though it might perhaps have been avoided. Such payment does not give them title. The title, if any, which they got from the Indian passed by their deed to Donovan. It did not revest in them because of their payment, made necessarily or unnecessarily, in satisfaction of the assumed breach of their covenants.
*462The ease of Sadie v. Wallace, 101 Minn. 169, 112 N. W. 886, 11 L. R. A. (N. S.) 803, 118 Am. St. 612, 11 Ann. Cas. 348, is without application. That involved a default judgment and what was said bad reference to such a judgment. There is no quarrel with the fundamental doctrine announced that one not a party to a judgment is not bound by it.
On June 26, 1923, the following opinion was filed:
Per Curiam.The decision heretofore rendered in this cause, after due consideration of an application for rehearing is in all things adhered to. The theory and holding of the majority of the court in the former opinion was that since defendants were not parties to the Federal suit, involving1 the blood status of the Indian to whose title defendants succeeded by conveyance executed, delivered and recorded, prior to the commencement of that action, , the judgment subsequently rendered therein is not res judicata as to them. 15 C. J. 1315. They are not here required to claim under or through defendant in that suit; their original title acquired through the government, plaintiff in that action, remains, so far as disclosed by the record, unchallenged in any litigation in which defendants have been afforded an opportunity to be heard. If in fact they were given notice and opportunity to appear and defend the Donovan suit and through relievable neglect or inadvertence plaintiffs in this action failed to show' that fact, relief can only be had, if at all, by application to the court below, and not on petition for rehearing here.
Petition for rehearing denied.