Brown v. Taylor

The opinion of the court was delivered by Williams, Ch. J. The questions arising in this case are, first, whether the judgment rendered by the supreme court, at the March term, 1835, in the suit in favor of the present plaintiffs against Ebenezer Kimball, was conclusive evidence against this defendant of a want of title in his intestate to the lot then recovered against the said Kimball, so as to preclude him from showing title to the lands in this suit, and, second, whether the rule of damages adopted by the county court, in giving the value of the whole right, was correct. It appears that Kimball was in possession of only part of the right of Experience Fisk, to wit, of lot No. 5, and shortly after the commencement of the suit against Kimball, the plaintiffs cited McDaniel, the defendant’s intestate, to appear and show title to the land then sued for. After the judgment rendered in that suit., in the county court, in favor of Kimball, adverse to the title of the plaintiffs, derived from McDaniel, McDaniel died. Exceptions, it seems, had been taken to the decision of the county court, which had not been heard at the death of McDaniel, and no further notice or citation was given to his administrator. The judgment of the county court was affirmed in March, 1835. We are of opinion that the plaintiffs, having commenced an action of ejectment against a person in possession of the lands deeded and warranted' to them by McDaniel, and having given notice thereof to McDaniel, in his life time, was not required to do any thing further in order eventually to charge McDaniel, or his legal representatives, with the consequences of a failure to establish a title in them to the lands [638] conveyed. On serving that notice, it became- the duty of McDaniel to make proof of his title in that action, and this duty devolved upon his legal representatives,without any further notice from the plaintiffs. Their failure to establish, or make proof of title, was equivalent to an eviction, and, according to the decision of this court, made in the case of Park v. Bates, 12 Vt. R. 381, entitled the plaintiffs to maintain this action. The effect of such a judgment, with notice, is conclusive evidence of the want of title in the grantor, and sufficient to enable the grantee, or his assigns, to maintain an action on the covenant of warranty, unless it can be made to appear that the recovery was had on account of some act or neglect on the part of the grantee, or his assigns. The offer, in this case, to show a title in McDaniel, at the time he conveyed to the persons under whom the plaintiffs claim, without showing that such title had been lost through the fault or neglect of the plaintiffs, or the persons conveying to them, was inadmissible and properly rejected by the court, as it would be, in effect, to try the same questions which had once been adjudicated in a suit to which the defendant was, or might have been, a party. As this judgment was thus conclusive, so as to enable the plaintiffs to maintain this action, it could only be conclusive as to that part of the land, formerly conveyed by McDaniel, which was in controversy in that suit, and there adjudicated. This was lot No. 5, only, as that was the only lot of which Kimball was ever in possession. And, from the exceptions and judgment in the case, it appears it was the only lot in controversy, in that suit. Whether the original declaration in the suit against Kimball declared for the whole right, or the lot of which he was in possession, the judgment was only conclusive as to this particular lot. It would not have availed the plaintiff in that suit to establish a perfect title to any other part of the right of Fisk, unless they could show a title to the lot in controversy. The result, therefore, is, there has been no eviction, or that which is equivalent to an eviction, of any other part of the right in question, except lot No. 5, and this was necessary to enable the plaintiffs to recover on the covenant of warranty. We are not to say whether it is, or will be, of importance to the plaintiff to enter into possession of the other parts of the right, or commence any action [639] to recover therefor. As the defendant was precluded from giving any evidence of the title of his intestate, by the operation of the judgment, rendered in the action against Kimball, he will not be precluded from showing a title to any other part of the right when he is legally called on so to do. The county court, in rendering judgment on the verdict of the jury, for the value of the whole right, erred, and this judgment is reversed, and judgment is to be rendered for the plaintiffs to recover the value of lot No. 5, only, which the jury estimated at four hundred and fifty-one dollars and twenty-eight cents.