1. Federal Courts — Jurisdiction—Suit fob Partition.

A suit for partition is a local action within the provisions of Act March 3, 1875, c. 137, § 8, 18 Stat. 472 [U. S. Comp. St. 1901, p. 513], and. one in which any question between any of the parties, plaintiffs or defendants, affecting their rights or interests in the land may be put in issue and determined; and a federal court is not without jurisdiction because questions may arise between plaintiffs who are citizens of the same state, nor will it make a realignment of parties to defeat its jurisdiction because such questions may arise, where the bill, although properly setting out the interest of each party in the premises, does not disclose any controversy which renders it necessary.

2. Abatement — Another Action Pending — Federal and State Courts.

The pendency of a suit in a state court cannot be pleaded in bar of a suit between the same parties on the same cause of action in a federal court.

[Ed. Note. — For cases in point, see vol. 1, Cent Dig. Abatement and Revival, §§ 87-92.

Pendency of action in state or federal court as ground for abatement of action in the other, see note to Bunker Hill & Sullivan M. & C. Co. v. Shoshone M. Co., 47 C. C. A. 205.]

3. Res Judicata — Validity of Judgment — Affirmance in-Direct Proceedings.

Where a question as to the validity of a judgment of the Supreme Court of a state was raised in such court by a petition for rehearing, and decided adversely to the petitioner, who thereupon removed the case to the Supreme Court of the United States by writ of error, where the same question was "raised, and the judgment of the state court was affirmed, such question is res judicata, and cannot be again raised collaterally between the parties.

4. Same — Matters Concluded by Judgment.

The heirs of a deceased wife brought suit in a state court to recover a half interest in certain real estate as community property in which their mother’s interest descended to them." At the time of her death plaintiffs were minors, and their interests in the- property were thereafter sold and conveyed by their guardian to their father under an order of the probate court The father then mortgaged the entire property to the defendant in the suit for money borrowed to improve the same, and such defendant subsequently bought it in on a foreclosure of the mortgage. By the final judgment of the court, entered pursuant to a mandate of the Supreme Court of the state, the guardian’s deed, the mortgages to the defendant, and the conveyance based thereon were held void and set aside as to the half interest in the property held by the wife, and plaintiffs were adjudged the owners of an unincumbered, undivided half interest in the property, together with the tenements, hereditaments, and appurtenances thereto belonging, free and clear of all incumbrances, and free from any right or title of the defendant thereto. The defendant moved the Supreme Court to modify its decree so as to leave open for adjudication by the court below all questions as to the rents, taxes, and repairs, and the value of permanent improvements placed on the premises with money borrowed from it as mortgagee, which motion was denied. Held, that the judgment was an adjudication of the defendants’ rights with respect to the improvements, rents, etc., and that such rights could not be again contested in a subsequent suit for partition brought by the heirs.

5. Tenancy 'in Common — Recovery from Co-tenants for Improvements— Bona Fide Purchaser.

A tenant in common, who became such through a purchase by which he supposedly acquired the entire title, can only recover from his co-tenants for improvements made upon the property where he occupies the position of a bona fide purchaser; and he does not have such stand ing as against his co-tenants where at the time of his purchase he had full knowledge with respect to conveyances which purported to divest them of their interest, but which were in law fraudulent and void, merely because through mistake of law he relied on their sufficiency.

6. Same.

A mortgagee, who acquired title to the property through foreclosure, and who had full knowledge, when he took the mortgage, of probate proceedings by which it had been sought to vest the interest of certain minor heirs in the property in the mortgagor, which proceedings were fraudulent in law, and were afterward set aside, is not entitled, as a tenant in common with such heirs, to recover from them for improvements placed on the property by the mortgagor either as a bona fide purchaser or through subrogation to the rights of the mortgagor, who, being a purchaser mala fides, could not recover for such improvements.