Bowie v. Landry

• Decision Date: 21 June 1956
• Parties: Minnie B. BOWIE, Gladys Bowie, Beverly Bowie and Mary Harris, v. Alfred A. LANDRY.
• Court: Maine Supreme Court

Page 774

122 A.2d 774

152 Me. 88

Minnie B. BOWIE, Gladys Bowie, Beverly Bowie and Mary Harris, v. Alfred A. LANDRY.

Supreme Judicial Court of Maine.

June 21, 1956.

May & May, Auburn, Irving Friedman, Lewiston, for plaintiffs.

Frank W. Linnell, Auburn, for defendant.

Before FELLOWS, C. J., WILLIAMSON, WEBBER, BELIVEAU and TAPLEY, JJ., and MURRAY, A. R. J.

FELLOWS, Chief Justice.

This case comes to the Law Court on plaintiffs' exceptions. The action is a writ of entry describing certain land in Androscoggin County and alleging that the plaintiffs are the owners in common, and that the defendant disseized them within twenty years, and unjustly withholds. The declaration seeks rents and profits, for trees cut, and other waste. The defendant pleaded nul disseisin with a brief statement claiming res judicata, and also claimed an estoppel, because one of the plaintiffs, for the benefit of all, had previously brought trespass quare clausum alleging trees cut and removed, and that the jury returned a verdict for the defendant.

In the original trespass case, the general issue only was pleaded. There was no brief statement to raise any particular fact in defense. See Bowie v. Landry, 150 Me. 239, 108 A.2d 314, where the Law Court considered a general motion by plaintiff for new trial in the previous trespass case between the parties.

The plaintiffs demurred to the brief statement filed by defendant in this real action, and the demurrer was sustained. The defendant was then permitted to amend.

An amendment was made to the brief statement and filed in this pending action, which amendment precisely and clearly set out the defense of estoppel, improperly stated in the original brief statement, and claimed res judicata and that plaintiffs were estopped. A second demurrer then was filed by the plaintiffs, which second demurrer was overruled, and the plaintiffs took exceptions. These exceptions to the overruling of the second demurrer to the amended brief statement are now before the Law Court.

The defendant stated, in his amended brief statement, that by the verdict in the previous trespass action that matters alleged in plaintiffs' declaration are res judicata, and also that 'the precise question to the plaintiffs' right to recover damages from this defendant in this action for the cutting and carrying away of the same trees for which claim was made by these plaintiffs in said previous action has been determined, and the plaintiffs are estopped to claim damages of the defendant in this action for the cutting and carrying away of said trees.'

The plaintiffs contend and say 'that the issues presented in the two suits are different, the one being right to possession; the other, title. The damages claimed are incidental only and are not a necessary element in either action. It is not shown that the right of the demandants to damages from the disseizor for injury to the land was particularly presented and determined in the trespass action, or that the judgment was rendered on the merits.'

Res judicata (sometimes called res adjudicata) means that an issue has been decided by a court of competent jurisdiction. Estoppel means preclusion by personal action or by judgment. The former rests on legal reasons, the latter, equitable. See Bouvier Law Dictionary, Third Revision, 'Res Judicata' and 'Estoppel.'

The cause of action in a trespass suit and the cause in a writ of entry are not the same. The gist of the action of trespass is the breaking and entering, and possession in the plaintiffs is a prerequisite. See Bray v. Spencer, 146 Me. 416, 82 A.2d 794 and cases therein cited. In the writ of entry seizin or title is the issue, the wrongful act is disseizin; the recovery is the land, and perhaps rents, profits, and damages to the realty. Kimball v. Hilton, 92 Me. 214, 42 A. 394; Bemis v. Diamond Match Co., 128 Me. 335, 147 A. 417. In a trespass suit, plaintiff must prove he was in possession of the land, or a part of the land. The two are inconsistent, and the evidence that would prove one would probably disprove the other.

The facts revealed by the pleadings in this case tend to show that the defendant may have been in possession of some part of the land when the trespass suit was brought, and that the plaintiffs in the trespass case may have mistaken their remedy. Under these circumstances, res judicata is not a defense to the case at bar. Bray v. Spencer, 146 Me. 416, 82 A.2d 794 and cases therein cited. Hill v. Morse, 61 Me. 541; Hayden v. Maine Cent. R. Co., 118 Me. 442, 108 A. 681.

To constitute an estoppel by judgment, it must be proved affirmatively that, in the suit in which the judgment was entered, a right or claim was specifically presented, definitely passed upon, adjudged, and decided. The expression that a...