On the face of the record res judicata does not apply because of the lack of identity of parties in the state court and federal court suits. New York Life Ins. Co. v. Cooper, 10 Cir., 167 F.2d 651, 654, certiorari denied 335 U.S. 819, 69 S.Ct. 41, 93 L.Ed. 374; Grisham v. Commissioners of the Land Office, 324 P.2d 278, 280 (Okla., 1958). The Oklahoma statute provides that a lien for labor or materials shall be preferred to an encumbrance attaching after the commencement of the construction which is the basis for the lien.

As heretofore observed, the trustee in bankruptcy was not a party to the mortgage foreclosure proceedings and had no notice thereof. We think it follows that the foreclosure proceedings as to the trustee, and those claiming under him, were void. Barrett v. Board of County Com'rs of Tulsa County, 185 Okla. 111, 90 P.2d 442; Greco v. Foster, Okla., 268 P.2d 215; and Grisham v. Commissioners of the Land Office, Okla., 324 P.2d 278. On the question of whether the defendants are barred from recovery on their cross-petition by the limitation provisions contained in 12 O.S. 1961 § 93[ 12-93](1), we are of the view that they are not. The Cal-Cul Oil Company was adjudged a bankrupt in 1933, and the title to these severed minerals vested in the trustee in bankruptcy at the time the petition in bankruptcy was filed.