Stevens v. Hughes et al.

• Decision Date: 01 January 1858
• Citation: 31 Pa. 381
• Parties: Stevens versus Hughes et al.
• Court: Pennsylvania Supreme Court

31 Pa. 381

Stevens versus Hughes et al.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Franklin county.

Stevens, for the plaintiff in error.—It is well settled, that matters which have been once determined by judicial authority, cannot be again drawn into controversy, as between parties and privies to the determination: 2 Sm. L. C. 572; Osborn v. Etheridge, 13 Wend. 339; Smith v. Whiting, 11 Mass. 445; Young v. Black, 7 Cr. 567. This is so universal, that the change in the form of action makes no difference: Marsh v. Pier, 4 Rawle 273; Whelan v. Hill, 2 Whart. 119. The case is the same, where the question was determined by arbitrators under a rule of court, or in equity: Bower v. Tallman, 5 W. & S. 556; 9 Cow. 271; 1 Watts 149. When the cause of action in which the judgment is rendered is entire, and therefore insusceptible of severance, the estoppel will extend to the whole, and it cannot be shown that any part of it was withheld from the court and jury: 2 Sm. L. C. 573-4; 6 Hill 121; Ramsey v. Herndon, 1 McLean 450; Brockway v. Kinney, 2 Johns. 210. The estoppel of a judgment is binding as to all matters actually and legally in controversy in the suit: McGuinty v. Herrick, 5 Wend. 245.

There can be no doubt that an estoppel may be replied to a plea of liberum tenementum: Feversham v. Emerson, 11 Exch. 385; Outram v. Morewood, 3 East 346; Wood v. Jackson, 8 Wend. 18; 2 Sm. L. C. 474.

Watts and J. M. Sharp, for the defendants in error.—Whether one judgment upon the title to real estate in an action of trespass, is so conclusive as to preclude the same parties, or their privies, from afterwards controverting it, is an open question in Pennsylvania. It was doubted in Kerr v. Chess, 7 Watts 367; and Foster v. McDivit, 9 Id. 341. The policy of our law is against it. That a party's title to real estate shall not be concluded against him, in ejectment, until two verdicts and judgment thereon are rendered against him, for the same land, by a court of competent jurisdiction, is settled law: White v. Kyle's Lessee, 1 S. & R. 515; Richardson v. Lessee of Stewart, 2 Id. 84; Ives v. Leet, 14 Id. 301; Mercer v. Watson, 1 Watts 330; Treaster v. Fleisher, 7 W. & S. 137; Sample v. Coulson, 9 Id. 62; Drexel v. Man, 2 Barr 267; Blackmore v. Gregg, 10 Watts 222; Paull v. Oliphant, 2 Harris 342; Hinman v. Kent, 3 Id. 14. And it is difficult to perceive why the same policy should not govern in trespass.

The former judgment does not estop us, because not on the same title: Mercer v. Watson, 1 Watts 330: Treaster v. Fleisher, 7 W. & S. 137; Miles v. Miles, 8 Id. 135.

The opinion of the court was delivered by STRONG, J.

This was an action of trespass quare clausum fregerunt, in which the allegation was that the defendants had broken the close of the plaintiff, and had cut and carried away timber. The declaration described the close particularly by courses and distances, metes and bounds. The defendants pleaded the general issue, and tendered two special issues denying the title and possession of the plaintiff. They also pleaded liberum tenementum; not as the common bar, for the plaintiff had declared with certainty, and rendered a novel assignment unnecessary, but as a direct denial of the plaintiff's freehold in the close, and as an assertion of the freehold in themselves. To the three pleas last mentioned, the plaintiff replied a former judgment in another action of trespass, brought by a person under whom the defendants claimed, for a breach of the same close, in which a case had been stated, and judgment given for the plaintiff on the title alone. To this replication the defendants rejoined nul tiel record, and also that the plaintiff did not hold the same title which he held when the former adjudication was made. On this state of the pleadings, the parties went to trial.

At the trial, the plaintiff proved the cutting of timber within the lines described in his declaration, exhibited the former record which he had replied, and in addition gave in evidence patents to him for the lands, founded on the warrants and surveys which made his title in the former suit. Notwithstanding this, however, the court, without giving judgment directly upon the plea of nul tiel record, peremptorily instructed the jury to return a verdict for the defendants.

We are not informed by the record, why this instruction was given. As there was sufficient proof of the trespass within the lines of the close described in the declaration, we infer that the court must have been of opinion, either that there was no such record as that replied by the plaintiff, or that, if there was, it did not establish, as against the defendants, that the title of the close was in the plaintiff at the time the trespass was committed. That there was such a record, however, is beyond doubt, and consequently, we are brought directly to a consideration of its legal effect.

The record of the former suit exhibits, that after the action was brought, and the plea of not guilty had been entered, the parties agreed upon a case stated. In that the plea of not guilty was in effect withdrawn, as the defendant admitted the alleged cutting and trespass within the limits of the described close, and there was submitted to the court only the question whether the title was in Mr. Stevens, or in Samuel Hughes, under whom the defendants now claim. The title of both parties was submitted, and the final judgment was against that of Mr. Hughes, and in favour of that of Mr. Stevens. The case therefore presents a record, equivalent to a judgment in favour of a defendant, on a traverse of a plea of liberum tenementum, after a novel assignment, and this where there is no other plea. This is certainly the most favourable aspect for the defendants in which the record can be regarded.

The established rule of law, that a fact which has once been directly decided shall not again be disputed between the same parties, is not denied. In The Duchess of Kingston's Case, so often quoted, the unanimous opinion of the judges was that "the judgment of a court of concurrent jurisdiction, directly upon the point, is, as a plea, a bar, or, as evidence, conclusive, between the same parties, upon the same matter, directly in question in another court." Privies are equally bound. Admitting this to be the general rule, the defendants contend that it prevails only in regard to questions of personalty, and that title to real estate is not within it.

It must be conceded, that it has hitherto been regarded as an open question in this state, whether a judgment upon a traverse of a plea of liberum tenementum in trespass, standing alone, precludes a party against whom it has been entered, or his privy, from afterwards controverting the title to the same freehold in a subsequent action. That it has not been decided, arises, perhaps, from the fact that the plea has rarely, if ever, been pleaded alone. In Kerr v. Chess, 7 Watts 367, the question was attempted to be raised, whether it was conclusive of title in an action of ejectment subsequently brought, but it did not fairly appear upon the record, and was therefore left undecided. So also in Foster v. McDivit, 9 Watts 349, an effort was made to obtain a decision in a similar case, but only a doubt was expressed. It may well be, that in an action of ejectment, the effect of such a judgment may be unlike what it would have been in another action of trespass, and this, not on account of the nature of the subject-matter of the controversy, but on account of the form of the proceeding.

Originally, an ejectment was only an action of trespass by a lessee against one who had ousted him of his term. The plaintiff recovered damages, not possession. The freehold was not in controversy, certainly not directly. It was not until about the reign of Edward IV. that courts of law began to give judgment that the plaintiff should recover his term, as well as damages. Still it was only a term which he recovered, for the action was always founded on the assertion of an existing lease. Indeed, the declaration negatived the ownership of...