DISSENTING OPINION. The only issue raised in the pleadings in the original trial of the cause was, as correctly stated in the opinion of the majority, the issue of usury, and the reason that the issue was thus restricted was that neither mortgagor, Hollan, nor the present appellant, Page, tendered any other issue in their respective pleas. Appellant was made party defendant as a junior lienor, was served with summons and after being brought into the case filed interplea claiming a lien under his mortgage, which was junior in point of time *Page 613 to the mortgages executed to appellee. The trial court decided the only issue in the case (usury) against both the defendant and the intervener and rendered a decree in favor of appellee, in accordance with its complaint, declaring a lien on all the property embraced in each of the mortgage's for all of the various debts described in the mortgages. This constituted a distinct adjudication of the priority of the mortgages to appellee over the junior mortgage to appellant, Page.
The effect of this adjudication cannot be escaped merely because the appellant and the other defendant in the case failed to make the question of priority an issue. The rule established by this court and all other courts is that a former adjudication is a bar, in a subsequent suit, as to all issues which were determined or which could have been determined and that it is the duty of a defendant to tender all the defense's which are available, otherwise he will be barred by the adjudication. Ederheimer v. Carson Dry Goods Co. 105 Ark. 488; Jimmerson v. Fordyce Lumber Co. 119 Ark. 413; McDaniel v. Richards. 141 Ark. 453; Toll v. Toll, 156 Ark. 139.
The present appellant, Mr. Page, did not appeal from the original decree and did not attempt to contest appellee's right of priority until the case was remanded to the trial court for further proceedings. His sole attitude in the case up to that time was such as to make him the recipient of benefit under Hollan's plea of usury, which was sustained by this court, and to that extent the present appellant was benefited.
As to the original question of priority, I am also of the opinion that the decree in favor of appellee was correct, for each of the mortgage's to appellee contained a provision securing, not only the particular note or notes described therein, but "all other moneys and advances, goods, wares, merchandise, supplies, services, etc., furnished by the party of the second part to the party of the first part up to the foreclosure of this instrument." The language brings the instrument within the *Page 614 rule often announced by this court sustaining mortgages containing similar provisions. Moore v. Terry, 66 Ark. 393; Word v. Cole, 122 Ark. 457; Patterson v. Ogles, 152 Ark. 395.
The majority say that "the proper interpretation of the clause for advances in the several mortgages was to secure any additional advances which appellee might make on any particular shipment, and not to secure independent loans secured by other mortgages on independent shipments." How they reach that conclusion I am unable to see, for this view appears to me to be directly in conflict with the cases cited above. The parties had the right to make their own contract, and the restriction placed on the language by the majority seems to me to be entirely unwarranted.
My conclusion, therefore, is that under either theory the decree of the chancery court was correct and should be affirmed.
I am authorized to say that Mr. Justice SMITH agrees with me in the views I have expressed.