Parks v. Moore

The opinion of the court wag delivered by

An adjudication on the merits of a cause, by a court of competent jurisdiction, is conclusive of the matter litigated, upon the parties, and all claiming under them ; and, by our statute, a judgment in ejectment is conclusive of title. The identity of the subject matter of litigation, however, generally rests in parol. It is seldom the case that this can be settled by the record alone, as it may be avoided by a different description. When the declaration is of a general character, as in'general indebitatus as-< sumpsii, though the judgment is, prima facie, conclusive of all that might have been given in evidence under it, yet, resort may be had to evidence to show what, in fact, was litigated, and of that, only, will the judgment be conclusive. This the plaintiff or defendant may be permitted to do. So, too, the prima facie effect of a judgment may be qualified, even in ejectment, by showing, by parol, that the title was not, in fact, litigated ; or by. showing that the judgment was against the plaintiff; not on the title, but because he did not prove that the defendant was in possession, or because the defendant showed a temporary estate or right in himself, which has since expired. That the identity of the subject matter of a former action, and the present one, rests, generally, in evidence out of the record, and that parol testimony may be admitted to ascertain it, is quite obvious, and fully settled by the authorities cited by the defendant’s counsel, in this case. To this point, the jurors, on the former trial,, are as admissible as any other witnesses. They were witnesses to show that the land now sued for, and of which the defendant is in possession, is, in fact, the same land, which, perhaps, under a different description, was claimed and litigated in the former suit.

In this case, it appears that John Moore died seized of a farm, in North Hero, extending across the island, from east to west, called the Moore farm, and Elihu Parks owns the *189farm north of it, being the first division lot of Robert Cochran. A dispute arose in relation to the line between these farms. Parks took possession to the line, twenty-eight or thirty rods south of the line, to which Moore claimed. Cath- •* ' arine Moore, as the administratrix of John Moore’s estate, commenced her action of ejectment against Parks, declaring for so much of the Moore farm, and describing it as beginning at the north-east corner of the Moore farm, on the lake shore, and running on the shore southerly thirty rods, and so taking a piece thirty rods wide across the island. In that action, a trial on the merits, was had, and the plaintiff recovered against Parks. It must then have been shown that Parks had gotten into possession of so much of the Moore farm, and any testimony tending to show he was not on the Moore farm, or that the north-east corner and north line of the Moore farm was further south than where the adminis-tratrix claimed, and did not include the land Parks possessed, would have been admissible. After that recovery, it appears that John A. Moore, the present defendant, under the said Catharine, and, as her tenant, went into possession of said land, and erected a fence on the north line, as claimed by her, whereupon Parks commenced this action of ejectment against him, describing the land as a part of the Cochran lot, which is his farm. Moore pleads the former recovery by the administratrix, and alleges that to be the same land ; and this is traversed by Parks. On this issue, all testimony, by parol or otherwise, which tends to show the identity of the land, was admissible, however different might be the descriptions. Moore having given the record of the former action in evidence, and closed his testimony on the subject of identity, Parks proposed, not to contradict this proof, but “to prove that the north-east corner of the Moore farm was, in fact, thirty rods further south.” This testimony was very correctly rejected by the court. First, it was an attempt to try again the' question which must have been tried in the former action, for it was testimony which would have been admissible on that trial, as it tended to show that the land in controversy was no part of the Moore farm. Secondly, the issue on trial was, whether this land was the subject matter of the former trial, and the testimony now offered by *190the plaintiff, did not tend to settle that issue, but to impeach the former judgment, and was therefore inadmissible.

It is much insisted that the course taken with this cause would lead to confusion, as a man might recover for number one, and, under that, hold number five. The record of a recovery operates as an estoppel. The parties are not permitted to allege or prove any thing which contradicts it. If a man sues for a certain piece of land as number one, and recovers , that settles, as it respects those parties, that the defendant was in possession of a certain piece of land, that the plaintiff owned it, and that it was lot number one. Now, whenever a question again arises between the same parties, or their privies, in relation ,to the same land, they are not permitted to contradict either of said points, and, therefore, are not permitted to say it is number five. The only question open to litigation between them, relates to the identity, not to the description. In this case it is obvious there was no contradictory testimony, as to the identity of the land, and the court, therefore, correctly decided that the former recovery was conclusive.

Judgment affirmed,