Opinion by

It is distinctly averred in the answer of the appellants that the vendee of the appellee instituted, an action of ejectment against him for the recovery of this identical land, that the title was placed in issue by the answer, and upon the trial the jury found for the defendants. The appellee in his reply admits the institution of the ejectment by, Neely, and that a judgment was rendered for the defendants, but denies that he is estopped to institute another action, by reason of the former verdict and judgment against his vendee. *268Why the judgment is not conclusive we cannot well see. The privity between the vendor and vendee was such as to make the action on the part of the vendee against these parties conclusive in the present action on thé part of the vendor to recover the same property. There is nothing in this record to show that there was a non-suit in the action brought by Neely, but on the contrary there was a verdict and judgment for the defendants. The court below should have adjudged on the pleadings in favor of the appellants.

The judgment is reversed and cause remanded for further proceedings consistent with this opinion. The court may in its discretion allow, the reply to be amended, but this court will not so direct.