(concurring). — It is contended that appellants Fannie Ottensoser and L. Ottensoser are estopped from questioning the propriety of the decree of the Circuit Court made in the case of W. W. Clyatt and other stockholders v. The Ocala Building and Loan Association adjudging the association insolvent, appointing the receiver and fixing the terms of settlement with borrowing stockholders, because they filed before the court a protest against the plan of settlement which the bill prayed for and which the court adopted, and were represented by counsel in opposition to the plan. The following seem to be the facts:
1st. The appellants were not parties to that suit.
2nd. The defense, if any was made, is not distinctly set forth, but it is inferable that the plan asked to be adopted had already been agreed to by a majority of the stockholders, and that the association did not by answer or otherwise oppose its adoption by the court.
3rd. It does not appear that any stockholder was a party defendant in that cause, and therefore, there was no defendant before the court with an answer or other pleading setting up the defense that the plan agreed upon was inequitable or unjust to these appellants or any other stockholder. In other words, it does not appear that the pleadings raised any issue upon the propriety or equity 'of the agreed plan, and, therefore,
4th. It does not appear that the pleadings were in a condition which permitted the defense that the plan was inequitable to these appellants' b}r them or any one else.
5th. It does not appear that appellants offered testimony, or that there was any issue made upon which they could have offered testimony, or that they in any manner controlled the defense, but on the contrary it rather appears that they did not control the defense.
6th. It does not appear that they occupied any such relation to that-cause as would have enabled them to appeal *283from the decree rendered, or on appeal have been able to present any issue to this court for decision; as the only defendant, the association occupied to these appellants a hostile position.
The foregoing facts are plainly inferable from the record.
In Greenleaf on Evidence, sec. 523 (16th ed.), it is. said: “It is also a most obvious principle of justice, that no man ought to be bound by proceedings to which he was a stranger; but the converse of this rule is equally true, that by proceedings to which he was not a stranger he may well be held bound. Under the term parties, in this connection, the law includes all who are directly interested in the subject-matter, and had a right to make a defense, or to control the proceedings, and to appeal from the judgment. • This right involves also the right to adduce testimony, and to cross-examine the witnesses adduced on the other side. Persons not having these rights are regarded as strangers to the cause. But to give full effect to the principle by which parties are held bound by a judgment, all persons who are represented by the parties, and claim under them, or in privity with them, are equally concluded by the same proceedings. We have already seen that the term privity denotes mutual or successive relationship to the same rights of property.” The several classes of privities are given in section 189 Id. as follows: “Thus, there are privies in estate, as donor and donee, lessor and lessee, and joint-tenants; privies in blood, as heir and ancestor, and coparceners; privies in representation, as executors and testator, administrators and intestate; privies in law, where the law, without privity of blood or estate, casts the land upon another, as by escheat. All these are more generally classed into privies in estate, privies in blood, and privies in law.” And in note 1 is given privity in tenure between landlord and tenant; privity in contract alone, or in the relation between lessor and lessee, or heir and tenant in dower, or by the curtesy, by the covenants of *284the latter, after he has assigned his term to a stranger; privity in estate alone, between the lessee and the grantee of the reversion; and privity in both estate and contract, as between lessor and lessee.
In the case of Elizabethport Cordage Co. v. Whitlock et al., 37 Fla. 190, Whitlock was held estopped by two judgments in ejectment, in which suits he had filed pleas asserting title in himself as owner, and alleging the other defendants to be his tenants. Whitlock therefore not only filed pleas and defended the suits, but was privy in tenure with the other defendants in the suit. Under the law as above given he was therefore properly held to be estopped by the judgments against his lessee or tenant. But that case is clearly unlike the one at bar.
In Cecil v. Cecil, 19 Md. 72 (81 Am. Dec. 626, annotated) the court quotes the law from Greenleaf as we have stated it, and says: “Parties in the larger sense are all persons having right to control proceedings, to make defense, to adduce and cross-examine witnesses and to appeal from the decision if an appeal lies. Only those therefore who have enjoyed all these privileges collectively should be concluded by decision, judgment or decree.”
In the case of Central Baptist C. & S. v. Manchester, 17 R. I. 492, S. C. 33 Am. St. Rep. 893, the question was “Is a person not a party to the record whose counsel is present and participates in the trial of a suit against his servant, agent or employee, bound by the judgment rendered in the suit.” The court held he was not bound. 2 Black on Judgments (2nd ed.) sec.'534. We do not think it essential to cite the many other authorities which are at hand. Applying the law as thus stated, to the foregoing facts, we are unable to hold that the Ottensosers were so connected with the case of Clyatt v. The Ocala B. & L. Association (the purpose of which suit was to procure a decree fixing the terms of settlement with borrowing members of an insolvent building and loan association, in which suit there was no party defendant representing the interests *285of such borrowers, and no answer, plea or demurrer raising in their behalf any issue, either of law or fact) as parties, or under any relation of privity, so as to be bound by the decree made in that case. Nor are the defendants estopped by the conduct at the meeting of the stockholders, called August 7, 1901, for the purpose of procuring the assent of all the stockholders to the plan of settlement which was then adopted; for while they were represented at said meeting by proxy, they did not consent or agree to the said plan. The notice calling the meeting shows that it was not to be regarded as adopted unless all, or practically all, the stockholders consented thereto, and it also shows that, unless all, or practically all, the stockholders consented thereto, a resort would be had to the courts for the appointment of a receiver, and the record shows that this latter course was followed in the case of Clyatt et al. v. The Ocala B. & L. Association. We can not discover from these facts that the appellants did anything upon which an estoppel could be predicated.