Summary
This was an action of ejectment or disseisin, for a tract of land, called the Adgate farm; tried, on the general issue, at Norwich, January term, 1823, before Brainard, J.
The defendant, after giving due notice, adduced in evidence the following documents. 1. The record of a declaration and judgment in an action of disseisin, brought by Jesse Brown against the present plaintiff, on the 29th of May, 1811, for the demanded premises, wherein the plaintiff declared, that on the 28th of May, 1811, he became well seised and possessed of the premises, when the defendant unlawfully entered and ejected him therefrom, &c. At the term of the county court, in June, 1811, judgment was rendered, by default, for the plaintiff to recover the seisin and possession of the demanded premises, with damages and costs. 2. The record of the declaration, pleadings and judgment in a scire-facias, brought, on the 20th of November, 1820, by Jesse H. Brown and others, heirs at law of Jesse Brown, then deceased, against Samuel Bradford, the present plaintiff, alleging, that said Bradford was then in actual possession of the Adgate farm; that the writ in the former action was lawfully served on him; that Jesse Brown had execution on the judgment, but before it was executed or satisfied, he died, leaving the plaintiffs in such scire-facias his heirs at law; that said Bradford was still in possession of the land; and praying for an execution to put them into the possession thereof. To this action, said Bradford, the defendant therein, at the term of the county court in June, 1820, pleaded, That in September, 1806, he was in possession of the premises, occupying the same as tenant at will under Joseph Howland, who, on the 27th of September, 1806, being then the owner of the premises in fee, conveyed the same, by mortgage deed, to Levi Coit, John Aspinwall, George Brinkerhoof and Jacob Stout; after which said Bradford still continued in the possession of the premises, as tenant at will under Coit and others, until and at the time the judgment was rendered against him in 1811, in favour of Brown, and afterwards, until the 18th of March, 1815, paying them annual rent; and then, for a valuable consideration paid by him to them, he became the purchaser of the premises, and received from them a deed, conveying the same to him in fee; and he had ever since continued to possess and occupy the premises, in his own right, as tenant in fee under such deed. To this plea there was a demurrer, on which judgment was rendered for the plaintiffs; and by virtue of an execution issued thereon they were, on the 6th of April, 1822, put into possession of the premises. It was admitted, that in April, 1322, the heirs at law of Jesse Brown, deceased, being the creditors named in the execution which issued on the scire-facias, were, by the officer who executed it put into possession of the land in question ; and that the present defendant, at that time, took a lease of it under them, and was in possession thereof as their tenant.
The defendant claimed to have proved, that the present plaintiff at the time the judgment against him in favour of Jesse Brawn, was rendered, was in possession of the demanded premises. by virtue of a contract, which he had made with Joseph Howland, for the purchase thereof; that Howland, after the making of such contract, conveyed the premises to Levi Coit and others, by mortgage deed, dated the 27th of September, 1806, of whom the defendant subsequently took a deed of the same land, in pursuance and in fulfilment of said contract; and that the title, which said action was commenced to try and decide, was the same title of Jesse Broten, under whom his heirs made claim.
The plaintiff gave in evidence a deed from Coit and others, dated the 18th of March, 1815, and a mortgage deed from Howland to them, dated the 27th of September, 1806, of the land in question; and claimed, that his title having originated since the rendition of the judgment in favour of Jesse Brown, was not affected by it; and that, by the terms of said process and judg ment, the title now claimed by the defendant, was not then put in issue, or decided.
The defendant also claimed to have proved, that the deed from Howland was fraudulent and void, as against creditors; and that Jesse Brown acquired title to the premises, by said levy, notwithstanding such deed. The plaintiff resisted this claim.
The judge instructed the jury, that the levy of said execution was not void; that the plaintiff was not precluded, by the facts in the case, from shewing his title; and that the records adduced by the defendant, were no bar to the plaintiff’s recovery. He, therefore, directed the jury to find a verdict for the plaintiff, unless they should find said mortgage deed was fraudelent.
The jury returned a verdict for the plaintiff; and the defendant moved tor a new trial, on the ground of a misdirection,
remarked 1. That the action of ejectment or disseisin, in this state, is a different thing, and designed to answer a different purpose, from the action of ejectment in England; the former being, as to title and the right of possession, in the nature of a writ of right. It is the only action in use to try the title to land. 2 Swift’s Syst. 69, 70. They then contended.
2. That the plaintiff was estopped, by the, judgment against him, first in the action of ejectment brought by Jesse Brown and afterwards in the scire-facias, brought by the heirs of Jesse Brown, to set up the title claimed in this action. Coe v. Talcott, 5 Day 88. 92. Outram v. Morewood, 3 East, 346. 364. Co. Litt. 352. Ferrer’s case, 6 Co. Rep. 7. A judgment in ejectment by default, has the same effect as one upon a verdict. Aslin v. Parkin, 2 Burr. 665. 668. Besides, the judgment in the scire-facias was not by default, but on a demurrer to the plea, which stated the very title now claimed. A judgment in ejectment against the tenant, is binding upon the landlord. Doe d. Troughton v. Roe, 4 Burr. 1996, 7. It is clearly binding upon the tenant himself.
3. That these judgments, if not strictly and technically an estoppel, were yet a bar to a recovery in this action. The title has once been tried, in the proper form of action.
insisted, 1. That if the plaintiff was precluded from shewing his title, it must be by the judgment in 1811; the scire-facias, in 1815, having nothing to do with the question of title, its only object being to place the heirs of Jesse Brown in the condition in which he was before his death A judgment in such scire-facias could not go beyond the original judgment, which it sought to enforce.
2. That the judgment in 1811, was not an estoppel in this case. First, the defendant has not pleaded it ; and it cannot be given in evidence under the general: issue, Evelyn v. Haynes, cited 3 East, 365. Vooght v. Winch, 2 Barnw. & Ald. 662. Secondly, the declaration in the former action averred only., that the plaintiff was “well seised and possessed of the premises.” A verdict against him on the general issue, will riot preclude him afterwards, when he has acquired a title in fee, from setting it up. In this state, ejectment is brought to try either the right of possession, or the title. When the right of possession only is tried, the judgment is no obstacle to a subsequent action claiming title in fee. It is not the form of action, "but the point decided, that creates an estoppel. Thirdly, the judgment referred to creates no estoppel, for want of reciprocity: for no one who is not bound by, can take advantage of, an estoppel. Co. Litt. 352. a. Lansing v. Montgomery, 2 Johns. Rep. 382. But it is settled, that Brown would not have been estopped, by a verdict for the defendant in that action. Smith v. Sherwood, 4 Conn. Rep. 276. Fourthly, such judgment created no estoppel, because it was by default, and without plea or trial. Fifthly, Coit and others were not estopped, by that judgment, because they were not privies, and because they had no notice, and no day in court: Doe d. Troughton v. Roe, 4 Burr. 1996. Doe d. Grocer’s Company v. Roe, 5 Taun, 205. The plaintiff has now acquired all their right.
Estoppels are not to be favoured, and, are to extend only as far as the positive rules have gone, because they prevent the investigation of truth. Rex v. Lubbenham, 4 Term Rep. 254.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
