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BARROWS v. KINDRED.

December 1, 1866

BARROWS
v.
KINDRED.



ERROR to the Circuit Court of the United States for the Southern District of Illinois; the case being thus: The statute of Illinois regulating the action of ejectment abolishes all fictions. Its twenty-ninth section provides that 'every judgment in the action of ejectment rendered upon a verdict shall be conclusive as to the title established in such action, upon the party against whom the same is rendered, and against all persons claiming from, through, or under such party, by title accruing after the commencement of such action, subject to the exceptions hereinafter named,' exceptions not material to be noticed. With this statute in force, the plaintiff in error brought an action of ejectment against the defendant in error in the court below, and upon the trial produced a chain of title, consisting of a patent from the United States to Whitney, a deed from Whitney to Vose, the will of Vose, and a deed from his executors to the plaintiff. This deed was dated March 18th, 1861. The validity of these several links was not denied. They made the chain of title complete, and prim a facie entitled the plaintiff to recover the premises in controversy. The defendant, thereupon, gave in evidence the record of a judgment relating to the same premises–rendered in a former action of ejectment–wherein the plaintiff in error was the plaintiff, and James R. Gordon was defendant. The judgment was in favor of the latter. This suit was begun on the 12th June, 1858, and ended June 5th, 1859. The defendant also proved that he was in possession as the tenant of Gordon; that in the former action set forth in the record in question the plaintiff, Barrows, gave in evidence the same patent from the United States to Whitney, the same deed from Whitney to Vose, a power of attorney from the executors of Vose to S. A. Kingsley, authorizing him to sell and convey the premises, a deed from the executors by Kingsley as their attorney in fact, to Scroggs, and a deed from Scroggs to the plaintiff. This power of attorney from the executors, and the deed executed by Kingsley, were ruled out as void. The defendant proved, further, that the deed from the executors of Vose to the plaintiff was given upon the same consideration as the former deed by their attorneys in fact to Scroggs. The evidence being closed, the plaintiff asked the court to charge the jury, that the record and evidence relating to the former trial constituted no bar to his right to recover in this action. This the court refused to do, and thereupon charged that the record in connection with the evidence did constitute a bar. The jury found accordingly for the defendant. To the admission of each of the several parts of this evidence, to the refusal of the court to charge as asked, and to the charge given, the defendant excepted. The correctness of these instructions was the question now before this court.

The opinion of the court was delivered by: Mr. Justice Swayne delivered the opinion of the court.

Mr. Grimshaw, for the plaintiff in error:

In the first action, the plaintiff was beaten; because, after deducing title in fee from the government to Vose, he failed to trace title from Vose to himself; because–in point of fact, as we may here state–Vose's executors, who had power to sell, had delegated it without authority of law to an attorney, who had conveyed to the plaintiff. And in the second action plaintiff was again beaten, after he had acquired title directly from the executors, subsequent to the judgment in first suit, because he had been beaten in the first suit for want of title, when he commenced the first action.

The present plaintiff was properly defeated in the first suit, because, although he traced title from the government to Vose, he failed to trace it to himself.

In the second suit, by title acquired from Vose, through his executors, who had power to convey, he showed title in himself, acquired after the former judgment, and regularly derived from the government through Vose to himself.

He should not be defeated in the first suit, because when he brought that suit he had no title, and then defeated in this suit, because, after the first suit had terminated, he acquired a paramount legal title.

The trial, as far as the plaintiff is concerned, relates to the state of title as it existed in plaintiff when he brought his suit. If he fails in his suit, defendant goes 'without day;' but no title is established by plaintiff's defeat.*fn1

Mr. Browning, contra:

The statute has given to the judgment in ejectment the same conclusive effect that other judgments have. Similar statutes exist in a number of the States, and many cases decided under them may be referred to.*fn2

The object of the statute is to put an end to litigation, and give repose to society by preventing the same precise question from being twice litigated between the same parties or their privies; and, in applying the statute, the court looks to the claim of the party and the issue joined upon it, and not to the accidents of the trial, to determine whether the first judgment is a bar to the second suit.

Here the plaintiff is the same; the defendant in the second suit is the tenant of the defendant in the first suit; the land sued for is the same; the interest claimed in it the same; the plea the same; putting the title, and that only, in issue in both suits.

The title, therefore, was the thing in issue; and the rule is, that when a matter is once put in issue, the verdict and judgment, whilst they stand, estop the parties from retrying the same issue.

And the effect is the same, whether the parties were prepared for trial or not. The force of the judgment, as an estoppel, is in no degree impaired by the failure of the plaintiff to produce evidence to support his claim.*fn3

The question of error in the instructions given by the court is the hinge of the controversy between the parties. The statute of Illinois regulating the action of ejectment abolishes all fictions. The twenty-ninth section provides that 'every judgment in the action of ejectment rendered upon a verdict shall be conclusive as to the title established in such action, upon the party against whom the same is rendered, and against all persons claiming from, through, or ...


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