Thompson v. Myrick

• Decision Date: 27 July 1877
• Citation: 24 Minn. 4
• Parties: Benjamin Thompson v. Nathan Myrick and Wife
• Court: Minnesota Supreme Court

24 Minn. 4

Benjamin Thompson v. Nathan Myrick and Wife

Supreme Court of Minnesota

July 27, 1877

[Syllabus Material] [Syllabus Material] [Syllabus Material]

In 1858, Nathan Myrick, one of the defendants in this action, entered into an agreement with Benjamin Thompson, the above plaintiff, whereby he undertook to vest in the said Thompson the title to such lands as should be obtained by the location of certain half-breed scrip. The scrip having been located, Thompson brought an action against Myrick and wife to compel the specific performance of the agreement. The complainant in that action alleged that the defendants had conveyed to one William Branch, January 23, 1867, one equal undivided three-fourths part of all the said land. But it also alleged that a part of one lot secured by the location of said scrip had been conveyed to the Western Land Association, July 11, 1870, and that the said association had conveyed to the said Myrick, on the fifteenth of July, a portion of the aforesaid lot. The plaintiff therefore demanded that the defendants be decreed to make conveyance to him of one undivided fourth part of all the lands first described, and the entire fee in that portion of the lot last described, or that the decree of the court should stand in place thereof, and be effectual to carry the title thereto, and that he have such further order, relief or decree, as is consonant to equity and good conscience, and as to the court may seem meet. The district court for Ramsey county, Wilkin, J., presiding, entered a decree in accordance therewith, and duly vested the plaintiff with title to the said premises as in said complaint demanded. See Thompson v. Myrick and Wife, 20 Minn. 205.

The said Thompson thereafter brought this action to recover the sum of $ 12,000, alleged to have been received by the defendants from the sale of that undivided three-fourths part of the said land not included in the former decree of the court. The complaint alleged that an undivided three-fourths of a certain parcel of the said land had been sold to William Branch on the twenty-third of January, 1867, for $ 7,000; and that an undivided three-fourths of the remainder of the said land had been sold to the Western Land Association, in January, 1868, for $ 5,000. Upon the trial, by the district court for Ramsey county, Simons, J., presiding, the plaintiff offered in evidence the judgment roll in the former action, and rested. The defendants then moved that the action be dismissed, upon the ground that the suit, established by the said judgment roll, was a bar to the present action, which motion was allowed by the court, and a motion for a new trial having been denied, the plaintiff appealed.

E. C. Palmer for appellant.

The court erred in dismissing the cause on defendants' motion. Gen. St. c. 66, §§ 242, 243, 244; Trustees v. Cagger, 6 Barb. 576; Scofield v. Hernandez, 47 N.Y. 313. The judgment roll introduced was only evidence, and before the court could hold it a bar, the judge should have found the facts established by the evidence, and his conclusions thereon, separately. It is not the evidence which constitutes a bar, but the fact or facts deduced from the evidence, which deduction must be made in accordance with the provisions of the statute. Here the judgment was introduced by the plaintiff as evidence, to prove part of the facts of his case; and as it failed to show without argument or inference, that the cause of action now litigated was settled in that judgment, adversely to the position now taken, a motion to dismiss should have failed.

The judgment roll did not conclusively establish all the facts essential to recover in this action, and was therefore not a bar. Doty v. Brown, 4 N.Y. 71; Towns v. Nims, 5 N.H. 259; Bernard v. Hoboken, 3 Dutch. 412; Roberts v. Robeson, 27 Ind. 454; King v. Chase, 15 N.H. 9; Taylor v. Dustin, 43 N.H. 493; Garwood v. Garwood, 29 Cal. 521; Campbell v. Consualus, 25 N.Y. 613; Caperton v. Schmidt, 26 Cal. 479; Jackson v. Wood, 3 Wend. 35; Lawrence v. Hunt, 10 Wend. 81; Mersereau v. Pearsall, 19 N.Y. 108; Bank v. Lewis, 8 Pick. 113; Jones v. Fales, 4 Mass. 255; Patterson v. Jones, 27 Ind. 457; Taylor v. Castle, 42 Cal. 371; Seddon v. Tutop, 6 Tenn. 607; Burwell v. Knight, 51 Barb. 267; Nickerson v. California, 10 Cal. 520; Briggs v. Wells, 12 Barb. 567; Packet Co. v. Sickels, 5 Wall. 580; Whittemore v. Whittemore, 2 N.H. 26; Parker v. Thompson, 3 Pick. 429; United States v. Sumner, 4 Sumn. 426.

The complaint in the former action contains no reference to the Western Land Association, and the sale to Branch is only alleged in order to show the extent of the title remaining in the defendants. It is apparent, therefore, that there is no identity of subject-matter between the two actions. The first is an equitable action to recover certain real estate; the second is an action at law to recover a sum of money derived from the sale of certain other distinct and separate real estate.

Again the former judgment could not have been a bar to the present suit, unless the present cause of action was finally adjudicated by such judgment. Eastman v. Cooper, 15 Pick. 276; Hopkins v. Lee, 6 Wheat. 109; Badger v. Titcomb, 15 Pick. 416; Sawyer v. Woodbury, 7 Gray 499; Burlen v. Shannon, 14 Gray 433; Webster v. Lee, 5 Mass. 334; Wheeler v. Van Houton, 12 John. 311; Phillips v. Bench, 16 John. 136; Morse v. Marshall, 97 Mass. 519; Johnson v. Morse, 11 Allen 540; Secor v. Sturges, 16 N.Y. 548; Goenen v. Schroeder, 18 Minn. 66; Dixon v. Merritt, 21 Minn. 196. The judgment, however, could not have been a final adjudication of such matters as were not directly put in issue by the pleadings. Potter v. Baker, 19 N.H. 166; McDonald v. Bear River Co. 15 Cal. 148; King v. Chase, 15 N.H. 9; Bigelow v. Winsor, 1 Gray 302. Now here the title to the land in each action was based upon the same contract, but the cause of action was not the same in each suit. In the one case the cause of action arose out of a refusal to convey specific land; in the other the cause of action sprang from the refusal to pay over money derived from the sale of certain other land. It is manifest, therefore, that the two causes of action do not grow out of the same transaction, and are not sustained by the same evidence. Lawrence v. Vernon, 3 Sumn. 24. Certainly the failure of the plaintiff to unite the two causes of action in his first complaint, will not render the judgment in the first action a bar to this suit. Campbell v. Britts, 3 N.Y. 173; Whitcomb v. Williams, 4 Pick. 228; Young v. Rummell, 2 Hill 478; Goenen v. Schroeder, 18 Minn. 66; Dixon v. Merritt, 21 Minn. 196. The judgment in that action was confined to the specific relief demanded, and it cannot be maintained that its effect was enlarged as a bar to subsequent litigation, by means of the prayer for general relief. Gen. St. c. 66, § 246; Emery v. Pease, 20 N.Y. 62; Conaughty v. Nichols, 42 N.Y. 83.

Finally, it should be noted that all the cases which allow parol proof to show what was, in fact, decided in the suit pleaded as a bar, are opposed to the ruling of the court in this case, for if the test is, simply, could the matters have been included in the first suit under any form of allegation, there can be no need of parol proof to show that they were actually brought in. If, therefore, the defendants desired to show that certain facts, not apparent upon the record in evidence, were actually proved and decided at the former trial, they should have established the estoppel by proof aliunde.

Davis, O'Brien & Wilson, for respondents.

The complaint in this action did not allege ignorance of the conveyance to the Western Land Association at the time the first action was commenced. Badger v. Badger, 2 Wallace 47. The first complaint, moreover, contained a prayer for general relief, and the record in that action was therefore a bar to this suit. Freeman on Judg. §§ 249, 272, 282, 284; Fry on Spec. Perf. 447, 450, 466, 486; Sullivan v. Triunfo, 29 Cal. 585; Lindsley v. Thompson, 1 Tenn.Ch. 272; Gray v. Pingry, 17 Vt. 419; Perkins v. Walker, 19 Vt. 144; Bancroft v. Winspear, 44 Barb. 209; Guernsey v. Carver, 8 Wend. 492; Bendernagle v. Cocks, 19 Wend. 207; Fish v. Folley, 6 Hill 54; Marble v. Keyes, 9 Gray 221; Stein v. Steamboat, 17 Ohio, (State,) 471; Erwin v. Lynn, 16 Id. 539; Hites v. Irvine's Adm'r, 13 Id. 283; Le Guen v. Gouverneur, 1 John. Cas. 436; Southgate v. Montgomery, 1 Paige 41; Groshon v. Lyon, 16 Barb. 461; Ogden v. Bodle, 2 Duer 611; Mills v. Block, 30 Barb. 549; Goddard v. Benson, 15 Abb. 191; Embury v. Conner, 3 N.Y. 511; Aurora City v. West, 7 Wall. 82-102; Graham v. Oliver, 3 Beav. 124-128; Story Eq. Jur. § 796, et seq.

OPINION

Gilfillan, C. J.

This action is based on a contract between plaintiff and the defendant Nathan Myrick, by which the latter agreed to secure to be lawfully vested in the plaintiff the title to lands which should be obtained by the location of certain pieces of half-breed scrip. The complaint sets out the contract alleges the location of the scrip upon certain lands described, and such other facts as entitled plaintiff to have the title to the lands vested in him by defendant Nathan, pursuant to the contract. It then shows that Nathan, after the location of the scrip, refused, upon demand by plaintiff, to perform said contract, and fraudulently, and with intent to put the title to the lands beyond the reach of plaintiff, and to secure the same to himself, and for his sole use and benefit, procured the title to them to become vested, by a series of conveyances, all made without consideration, in his wife, the defendant Rebecca, and that she took such conveyances with full notice of all the facts, and that afterwards the defendants conveyed an undivided...