Johnson v. Morse

It is common learning that the judgment in an action of trespass guare clausum fregit, on an issue joined upon the plea of soil and freehold, is not conclusive evidence of title in a writ of entry to recover the same premises, between the same parties. But not even the possessory right in the land was put in issue upon the record, in the suit, the judgment in which the tenant asked to have held conclusive in favor of his title; but merely the right to a tree which grew upon the land.

Undoubtedly, as the tenant contends, it is competent to prove by paroi that something which the record shows may have been at issue was actually tried between the parties. And whatever was actually tried, and was essential to the judgment, is concluded by the judgment. But the point where the defence fails is this: that the seisin, which is in issue in the writ of entry, *542could not have been in issue in the former action. The judgment in the former action was conclusive on all that was adjudged in it; which was only the right of possession, and not the seisin.

Exceptions overruled.