The chief question is, whether the principle of res judicata applies here in bar of the rights of William Smith under the trust deed of 1854. He sues for one of the very “interests” all of which the supreme court has decided to have passed to Turner by the tax sale of 1864. This principle applies only in cases where these four things concur, viz.: 1st, where there is an identity of the thing sued for; 2d, where there is an identity of the cause of action; 3d, where there is an identity of persons and of parties to the suits; and 4th, where there is an identity of character or quality in the parties for or against whom the claim is madfe. Bouv. Law Diet. tit. “Res Judicata,” and the numerous cases there cited. In the present case it may be conceded, that the first condition exists. But the rest do not. As to the second, the cause of action in Turner v. Smith, 14 Wall. [81 U. S.] 553, was rent distrained for; while here the prayer is for a foreclosure of a mortgage of a rent-charge alleged to rest upon the land. As to the third condition, except the defendants, David Turner and J. H. Smith, none of the parties are the same as they were in Turner v. Smith [supra]. As to the fourth condition, in that case, J.M. Smith sued as owner of the rent-charge, while in this suit William Smith sues as beneficiary in a deed of trust, conveying the rent-charge and all the interests held by the grantors in the deed in the land in question. Thus, the cause of action, the parties, and the quality or character of the-*693parties are all different in the two suits, and William Smith is not estopped irom bringing this suit by the judgment against J. M. Smith in the suit of Turner v. Smith. He may sue, moreover, for another and better reason. He certainly had rights in the lot on Royall street, Alexandria, at the time of the tax sale in 1864. If that sale was invalid those rights still subsist. He is not bound by any judicial decision upon the validity of that sale rendered in a cause in which he was not a party. The constitution declares that no person shall be deprived of his property, except by due process of law. If that tax sale has been declared valid, it has been declared so in a proceeding to which he was not a party, and he is in no manner bound by the decision. He has as much right to impeach that sale by judicial proceeding as if the suit of Turner v. Smith had never been brought. His right to sue is as good now as it ever was.
The other question in the case is, whether the decision of the supreme court in Turner v. Smith is not, as an authority in settling the principle of law on which it was decided, binding upon this court in this cause. It would undoubtedly be so but for certain considerations about to be stated. In the case of Turner v. Smith the validity of the tax sale of 1S64 was not contested and was admitted. That being a concession in that case, the supreme court decided only that by a valid tax sale, under the laws of the United States cited, the land which is sold passes to the purchaser clear of all incumbrances. The complainant in the present suit, however, raises no question as to what passes by such a sale, but contests the validity of the sale of 1864, and rests his suit upon the question of its validity. And not having been a party to the former suit, he is not bound by the concessions, admissions, omissions, faults, or blunders of the plaintiff in that suit, and the decision there is only binding here as to the principle there settled, and not as to any different principle of law not raised or passed upon there, but relied upon here as governing this case.
The question here being the validity of the tax sale of 1804, and the facts of that sale being shown in the evidence to be identical with those which existed in the tax sale which was passed upon by the supreme court in the case of Tacey v. Irwin (reported in 18 Wall. [85 U. S.] 549), the complainant contends that this court is bound by the decision in Tacey v. Irwin, and not by that in Turner v. Smith. In the case of Bennett v. Hunter, 9 Wall. [76 U. S.] 326, the supreme court had decided that the owner of land assessed with a federal tax was not hound to tender the tax due in person, but might do so by another, and that if, in consequence of the refusal of tax commissioners to receive a tax when tendered by a person other than the owner of the land, the land was forfeited and sold, such tax sale was invalid. In the case of Tacey v. Irwin [supra], the supreme court held, that where the tax commissioners advertised, or gave out to the public, that they would not receive taxes from any but the owners of lands in person, then a tender by others than the owners was rendered useless and nugatory, and need not be proved, and that tax sales made of such lands were invalid and null.
The facts here being the same as they were in the case of Tacey v. Irwin, and the question of law upon these facts being the same, the decision there furnishes the law to this court of this case, and a decree must he given for the complainant.