Campbell v. Ayres

Now, why were not the matters ■stated in the replication of the complainant, put in issue and tried in that former suit? There is not a reason given. There is no pretence that the plaintiff was prevented by surprise, accident, or any other circumstance whatever. The plaintiff cannot suppose, that he had a right to keep silent on these matters in the former trial, and then bring them up in a subsequent suit. But he seems to think that these matters, not being put in issue and tried, were not *262adjudicated. It must be remembered, that tbe former suit was brought to settle the title to said lot, and obtain the possession thereof, and that, therefore, whatever went to show that the plaintiff in that suit had no right nor title, ought to have teen pleaded ; and that, by not putting them in issue, the complainant has surrendered or lost the benefit of them, unless the omission was under some of those circumstances from which chancery will relieve him. And of these, he has shown none. These matters here shown, are. but points going to prove or disprove title in the former-plaintiff. The principal issue in that suit, that is, the issue of title, involved all these. Major continet in se minus. The former judgment is conclusive, and determines this case.

Another point will be adverted to briefly. It is at least doubtful, whether the cause of this action is a subject of chancery jurisdiction. There is no one equitable circumstance set forth in the petition, and none is indicated by the transaction, unless the complainant could have averred, that Ayres bought of Crews, with notice of the mortgage from Crews to Campbell. But this he does not do. And if he had done it, and the fact had been proven, how would that warrant a decree, that Ayres should release title to Campbell, on the latter paying him two hundred -and fifty-four dollars ? It might have been good ground to decree that Ayres should hold subject to the mortgage, and that this should first be satisfied, but it is not easy to see how that could take away Ayres’ title by decree; and further, the prayer of the bill does not seek to subject Ayres’ title to Campbell’s mortgage, but to set aside Ayres’ deed, and for a decree of title in Campbell.

The decree of the District Court is reversed, and the bill dismissed, but without prejudice.