The opinion of the court was delivered, May 17th 1873, by

Michael Bolin, the plaintiff, bought lite pendente, and therefore with notice; the ejectment of Connelly, against Whitmore to November Term 1865, being indexed according to the requirement of the Act of 22d April 1856. The difficulty he encountered in this action was the fact that Connelly, the plaintiff in that action, and as assignee of Barnard Burns, the vendee of Terrence Timmons, held an equitable title only, upon which he recovered, the parol evidence showing that it was the only title he set up. No evidence was given to show that Whitmore, the defendant in that action, and grantor of Bolin, the plaintiff in this, set up any defence, other than non-payment of the purchase-money. In this state of the case the recovery of Connelly in the ejectment *339of I860 was final, according to the doctrine of Seitzinger v. Ridgway, 9 Watts 496 and Peterman v. Hulings, 7 Casey 432. Had Whitmore in that trial set up the deed from Terrence Timmons to himself as a purchaser for a valuable consideration, and without notice of the sale of Timmons to Barnard Burns, and that he had duly recorded his deed, a different question might have arisen in the trial of this case. But as no such issue was presented and tried in the former ejectment, we must presume now, that Whit-more failed to set up the defence because he knew then it would not avail him, and therefore defended against the plaintiff’s equity alone. Bolin, the present plaintiff, standing in privity with Whit-more, and having notice of the pendency of the former ejectment when he bought, stands now in no better situation than Whitmore. The verdict and judgment in the former ejectment were therefore final, and now estop the plaintiff from a new trial.

Judgment affirmed.