Dobson v. Hurley

SHAKPE, J. Unless the subject matter of an anterior suit be identical with that of a subsequent suit, a judgment rendered in the first is not conclusive upon the parties in the later suit except as to questions which were tried and determined in the first.—Strauss v. Meertief, 64 Ala. 299; Crowder v. Red Mountain Iron Co., 127 Ala. 254; Cromwell v. Sac., 94 U. S. 351. That both suits grew out of the same transaction does not prove the identity of their subject matter, for one contract may confer several distinctly different rights, as where a debt is created and secured by mortgage. The debt remaining xinpaid after maturity and after the law day had passed, the mortgagee had three rights and as many remedies. He may sue at law for the debt, or for possession of the mortgaged property, and he is also entitled to foreclose the mortgage in equity." The statute of limitations may bar the remedy for collecting at law, but it does not extinguish the debt or bar the right to [383] foreclose.—Duval v. McLoskey, 1 Ala. 708; Coyle v. Wilkins, 57 Ala. 108; Relfe v. Relfe, 34 Ala. 500; 13 Am. & Eng. Ency. Law, 703. Here the suit is for foreclosure. Its subject matter is the enforcement of a right in land, and is, therefore, essentially different from that of the former suit which sought merely to recover a judgment in personam. The judgment there rendered for defendants cannot preclude foreclosure unless its rendition involves the establishment of some defense which would also he a defense to the present suit. This would be. so if it appeared that either the general issue or the plea of payment was sustained in the first suit. The issues there presented by the pleadings were broad enough to include a defense here, but among them was that presented of the statute of limitations of six years which as has been, shown is no bar to this suit. The verdict was general for the defendants and from all- that appears from the present plea the jury may have found it alone upon the consideration that the remedy at law was barred. In failing to negative that the verdict was so found, this plea is insufficient.—Strauss v. Meertief, supra; Burden v. Shannon, 13 Gray, 433; Green v. Merchants, etc., Bank, 19 So. Rep. (Miss.), 350. Under proper averments the question'as to which defense the verdict is referable,-would become one of fact Avhicli might be determined upon evidence extrinsic to the record of the first suit including parol testimony not contradictory of that record.—Burden v. Shannon, supra; 3 Brick. Dig. 580, § 82. The chancery decree will be reversed, and one -will be luna rendered overruling the plea and rebranding the cause. -