Fessenden v. Barrett

• Decision Date: 24 November 1891
• Docket Number: 346.
• Citation: Fessenden v. Barrett, 50 F. 690 (D. N.H. 1891)
• Court: U.S. District Court — District of New Hampshire
• Parties: FESSENDEN v. BARRETT et al.

50 F. 690

FESSENDEN v. BARRETT et al.

No. 346.

United States Circuit Court, D. New Hampshire.

November 24, 1891

R. E Walker and Wm. L. Foster, for plaintiff.

R. M Wallace, for defendants.

COLT Circuit Judge.

This is an action brought by the plaintiff for the purpose of foreclosing a mortgage on a certain tract of land situated in the town of Mason, N.H. The mortgage covered several other tracts of land, not included in this suit. The present hearing was had upon defendants' motion to dismiss the suit upon the ground that the subject-matter here in controversy has become res adjudicata. This question is generally more properly raised by plea; but, since the plaintiff waives any informality as to the manner in which this defense is presented, we will proceed to dispose of it as if formally pleaded.

The judgment relied upon by defendants as a bar to this action is a former suit brought by the plaintiff in the supreme court of New Hampshire against Nelson L. Barrett, under whom the present defendants claim title, to recover possession of another piece of land covered by the same mortgage. In that suit the defendant claimed title to the tract of land then in controversy by virtue of a tax title from the said town of Mason for the year 1873, and the court held the tax title to be valid, and directed judgment for the defendant. The contention of the defendants in this suit is that the land in the present suit, although not the same, was a part of the land included in the mortgage, and was taxed precisely in the same manner in the year 1873 and that the point in issue was precisely the same in that suit as in this, namely, the validity of the tax title of the town of Mason for the year 1873 as against the plaintiff's title under the mortgage and that, therefore, the plaintiff is estopped from again adjudicating this question. As opposed to this position, the plaintiff maintains that the former suit is no estoppel to the present action-- First, because the issue is not the same; and, second, because the parties are not the same. It is elementary law to say that if either of these propositions is true the former judgment is no bar to this suit, and the defense of res adjudicata fails. The rule that the bar or estoppel in a second suit between the same parties is confined to the material issues adjudicated in the first is easier to state than it is to harmonize the various decisions of the courts on this question. This conflict of opinion in the adjudged cases arises from the different views taken by the courts as to what are to be classified as material issues in a prior suit between the same parties. The courts of some of the states hold that the former judgment may be set up as a bar or estoppel to all facts directly and distinctly put in issue, and the finding of which was necessary to the judgment. Gates v. Preston, 41 N.Y. 113; Gardner v. Buckbee, 3 Cow. 120; Wood v. Jackson, 8 Wend. 11; Jackson v. Lodge, 36 Cal. 28; Chase v. Walker, 26 Me. 555; Lynch v Swanton, 53 Me. 100; Babcock v. Camp, 12 Ohio St. 11; Bell v. McColloch, 31 Ohio St. 397. Other state courts seek to confine the effect of a former judgment as a bar or estoppel to the subject-matter in issue in the former suit. King v. Chase, 15 N.H. 9; Metcalf v. Gilmore, 63 N.H. 174; Cross v. Cross, 58 N.H. 373; Dooley v. Potter, 140 Mass. 49, 2 N.E. 935; Eastman v. Cooper, 15 Pick. 276; Clark v. Sammons, 12 Iowa, 368. The supreme court of the United States, and the weight of authority in the state courts, do not, it seems to me, support the view that the bar or estoppel in a second suit is confined to the subject-matter in issue in the first suit, and that, therefore, all other matters must be deemed collateral, or introduced by way of evidence, but that such estoppel extends to all matters and material facts put in issue, the findings of which are necessary to uphold the judgment. Aurora City v. West, 7 Wall. 83, 96; Beloit v. Morgan, Id. 619; Tioga R. Co. v. Blossburg & C.R. Co., 20 Wall. 137. In the leading case of Cromwell v. County of...