(dissenting in part).
On May 23, 1927, the Continental Supply Company, an Ohio corporation, brought its suit to foreclose its mechanic’s and mate-rialman’s lien, which it claimed to have on two oil leases in Seminole County, Oklahoma, for materials furnished the lessees, Searight, Dana and Lebow, for development of the two leasehold estates. One of the leases, known as the Youngblood lease, covered 40 acres, and the other, known as the Epperson lease, covered 80 acres. In addition to the lessees, a number of other parties who had filed similar lien claims were made defendants. The court appointed a receiver, who took charge of the property covered by the claimed liens. The plaintiff, by supplemental bill, brought in a third lease on another 40-aere tract, known as the Mayes lease, alleging that it had furnished material to Sea-right and Dana, used in the development of that lease, for which it claimed a lien. The receivership was extended to that lease and possession taken of the leasehold property. By fifth supplemental bill the plaintiff alleged that Cud Barnett, appellant here, was claiming a prior and superior right and title to the land covered by the Mayes lease, adverse to the rights of Searight' and Dana, lessees; and in that connection alleged that on or about November 5, 1927, Barnett instituted a suit in the district court of Seminole County, in which he claimed title and right to immediate possession of the 40 acres covered by the Mayes lease, and prayed that he be required to set up any claim he had to the premises in said lien suit, that he be enjoined from interfering with the receiver’s possession and control of the Mayes lease and from prosecuting his claim thereto in the State court. A copy of Barnett’s petition in the State court was attached, in which it appeared that he claimed title to that 40 acres and 80 acres lying immediately north of it, that he sought an adjudication of his right to immediate possession of both tracts, and an accounting for the oil produced under leases on each tract. Barnett'then came into the court below and filed answer to the fifth supplemental bill. He claimed to be the owner of the 40 acres covered by the Mayes lease adverse to the rights of Searight and Dana as lessees, and that their lessor had no title or interest in the land. He also alleged that he was the owner of the 80 acres immediately north of the 40 covered by the Sea-right and Dana lease, that Red Bank Oil Company and Henry T. Lamb were in possession of the 80 acres, extracting oil therefrom under a lease given by one who had no *532title to that 80. He asked that Red Bank Oil Company and Lamb be made parties in the lien suit, that the lease on the 80-aere traet, as well, as that on the 40-aere tract, known as the Mayes lease, be cancelled, that he be adjudged the owner of both tracts, that the Red Bank Oil Company and Lamb be held to account to him for oil produced from the 80 acres, and the lessees of the 40 acres be also held to account, and for possession of both tracts. He further alleged that at the time he instituted his suit in the State court he did not know that the lien suit was pending in the court below, that the basis of his claim to title to the 80 aeres was the same as to the 40 acres, and that he desired a complete determination of all his rights in both tracts by the court below. E. L. Mayes 'filed a response to Barnett’s answer. He claimed to be the owner of the fee title to both tracts and had given leases to the respective parties who were developing them for oil and against whom Barnett sought an accounting. The parties to the controversy between Barnett and those who claimed title to the two tracts and oil leases thereon were all citizens and residents of Oklahoma. No objection to the jurisdiction of the court over that controversy was made until after the district judge had expressed his opinion that the findings on that issue would be against Barnett. He thereupon, and before decree was entered, moved to dismiss as to that controversy, on the ground that there was no jurisdiction. That question is presented here on Barnett’s appeal, the court having adjudged him without interest in or title to either traet.
It is to be noted that the plaintiff in the original suit claimed no interest in or lien upon the 80-aere traet or the lease on that traet. I am therefore unable to see how the issue between Barnett and Mayes and his lessees over title to the 80 acres can be said to be auxiliary or supplementary to the main suit in any respect, and'thus dependent on it for jurisdiction. That issue seems to me to be wholly independent of and foreign to any issue in the main ease. It matters not that Barnett at first thought he wanted the Federal court to adjudge his interest in both tracts. He could not confer jurisdiction. It is said that his cause of aetion to the whole 120 acres was indivisible, that he Could not litigate with Mayes in the Federal court as to who had title to the 40-acre traet and then litigate with Mayes in the State court as to which had title to the 80 acre traet, that inasmuch as his claimed chain of title was the same to each tract a decree against him in the Federal court would bar him from maintaining a suit in the State court. Even so, that could not confer jurisdiction if there was no controversy or claim in, reference to the 80-aere tract or lease thereon in the main suit. It was entirely immaterial to all of the parties to the main suit and the issues between them whether fee title to the 80 acres was in Barnett or in Mayes, and whether the lessees of that traet held under Mayes or Barnett. There was no reference to the 80 acres in the fifth supplemental bill, which only called the court’s attention to the fact, and that for the first time, that Barnett claimed title to the 40 acres covered by the Mayes lease, on which liens were claimed, and that he had brought a suit in the State court to obtain possession of that 40; and that, it was said, would interfere with the jurisdiction of the court and the possession of its receiver. The restraining order issued against Barnett from further prosecuting his suit in the State court referred only to that 40 aeres. The 80-aere tract was not brought into the pleadings until Barnett.filed his answer to the fifth supplemental bill, and when Mayes and his lessees of the 80 acres joined issues with Barnett it constituted, in effect, a new and independent suit between them in which Barnett was plaintiff and Mayes and his lessees of the 80 acres were defendants. I therefore conclude that the decree should be reversed in so far as it affects the 80-aere traet. In other respects I concur.