Boyle v. Wallace

STONE, C. J. — Boyle executed a mortgage to Wallace, conveying real and personal property to him, as security for the payment of certain promissory notes. The notes not being paid, Wallace instituted a statutory real action for the recovery of the lands, to which defendant pleaded that the mortgage had been falsely read to him, and that by that means his signature to it had been fraudulently obtained. In other words, he defended on the ground of fraud in the execution of the mortgage. — 2 Brick. Dig. 14, § 13. There were verdict and judgment for the defendant. The present suit is founded on the same mortgage title, and was instituted to recover the personal property therein conveyed. In form it is a statutory action for the recovery of chattels in specie, a substitute for the common law action of detinue. The defendant pleaded the former recovery in the suit for the land in bar of the present action. In substance and form the plea is in all respects good and sufficient, and a bar to this suit, unless there is something in the nature of the former suit, which takes this case without the operation of the general rule. — 1 Greenl. Ev.,, § 528; Freeman on Judgments, § 257; Rakes v. Pope, 7 Ala. 161; Tarleton v. Johnson, 25 Ala. 300 ; Thomason v. Odum, 31 Ala. [355] 108; Patton v. Hamner, 33 Ala. 307 ; Hopkinson v. Shelton, 37 Ala. 306 ; Gilbreath v. Jones, 66 Ala. 129 ; Parker v. Thompson, 3 Pick. 429; Burt v. Sternburgh, 4 Cow. 559; Shuttlesworth v. Hughey, 9 Rich. Law, 387 ; Parker v. Leggett, 13 ib. 171; Montesquieu, v. Hiel, 23 Amer. Dec. 471; Lawrence v. Hunt, 25 ib. 539 ; Coffin v. Knott, 52 ib. 537. There was a demurrer to the plea of res judicata, assigning as a ground “that the plea shows that the former action described in said plea was ejectment, and the plaintiff has the right to bring a second action of ejectment, and the judgment in said action of ejectment is not conclusive between the parties.” The demurrer was sustained. In England many actions of ejectment may be brought between the same parties for the recovery of the same property, and a recovery in one suit is no bar to a second or subsequent action. This principle grew in part out of the fictitious machinery with which the remedy was then incumbered, and partly out of the fact that the recovery in such action was considered as settling only the right to the possession, as of the time of that suit. A right to the possession at one trial, it was said, could not determine the right to the possession at another time. In many of the States of this Union the fictitious machinery of the English system has been abolished, and in most of the States provision is made for a direct issue and trial between the adversary claimants. In many, if not a majority of the jurisdictions, either by statute or by judicial determination, the effect of a judgment in a suit for land, where the strength of the title is considered and passed upon, is as complete a bar to further contestation, as if personal property, or personal rights had been the subject of contention.— Barrows v. Kindro, 4 Wall. 399; Lessee of Parish v. Faris, 2 Black. 606; Adams v. Barnes, 17 Mass. 364; Hodges v. Eddy, 52 Vt. 434; Sims v. Smith, 19 Ga. 124; Dickerson v. Powell, 21 Ga. 143; Caperton v. Schmidt, 26 Cal. 479; Amesti v. Castro, 49 Cal. 325. 1 Herm. Estoppel & Res Judicata, §§ 199 to 210; 2 Smith Lead. Ga. *648 ; Wood v. Jackson, 22 Amer. Dec. 603; Davis v. Welburm, 26 ib. 154; Nason v. Braisdell, 33 ib. 331 ; Brown v. Taylor, 37 ib. 618; Postens v. Postens, 38 ib. 752; Drexel v. Man, 44 ib. 195 ; Brothers v. Hurdle, 51 ib. 400 ; Jones v. Weathershoe, ib. 653; Doty v. Brown, 53 ib. 350; Hanna v. Read, 40 Amer. Rep. 608; Wells’ Res Adjudicata, § 298; Smith v. Kernochen, 7 How. 198; Bailey v. Fairplay, 6 Bin. 450; White v. Kyle, 1 Serg. & R. 515 ; Doe ex dem v. Preece, 1 Tyrwhit, 410. In Alabama our legislation is peculiar. We have provided for dispensing with the fictitious frame-work of theac [356] tion of ejectment (Code of 1876, § 2959), but we have provided further that “two judgments in favor of the defendant in an action of ejectment, or in the nature of an action of ejectment between the same parties, in which the same title is put in issue, is a bar to any action for the recovery of the land, or any part thereof, between the same parties or their privies, founded on the same title.” — Code, § 2969. It will thus be seen that we have not entirely abrogated plurality of suits. We have reduced the number to two, in a class of cases. To give this statute full effect, we must hold that less than two judgments in favor of the defendant is not a complete bar against further suit for the same land, “between the same parties or their privies, founded on the same title.” Jones v. De Graffenreid, 60 Ala. 145, 152. In Camp v. Forrest, 13 Ala. 114, 117, it is said, such judgment “can never be final; and it is always in the power of the party failing, whether plaintiff or defendant, to bring a new action.” In the old case of Thurstout, ex dem Park v. Troublesome, Andrews’ Rep. 297, it is said one judgment in ejectment can not be pleaded in bar of another. See, of similar import, Wells on Res Adjudicata, § 327, and Herman’s recent work on Estoppel and Res Judicata, % 204; Dawley v. Brown, 79 N. Y. 390, 399. To hold the plea of res judicata good in this case would certainly lead to a most singular result. It would be to declare that while the judgment in ejectment was not conclusive of the right to the property therein litigated, it was nevertheless conclusive of the right to other property which had not been litigated, because it was dependent on the same title. Do we not give to the doctrine of res judicata its full effect, when we hold that a trial and judgment in any given case upon the validity and strength of a particular title, has the same force and effect — no more and no less^ — upon any other contention between the same parties or their privies, which depends on the same title. As the plea would not have been a bar to a second suit for the recovery of the land, we feel constrained to hold it is not a bar to the present action, which is a suit between the same parties, dependent on the same title. There is nothing in the other questions raised. — Zeller v. Eckert, 4 How. U. S. 289. Affirmed.