123 Tenn. 419 | Tenn. | 1910
delivered the opinion of the Court.
This ease is before us upon bill and demurrer. ■ The chancellor overruled the demurrer; and in the exercise of his discretion permitted defendants to appeal. This is the second suit between the same parties to recover the same land.
On July 1, 1903, complainants filed their bill in the chancery court of Scott county to recover of these defendants a certain tract of land, which is sufficiently designated for present purposes as grant No. 21937. Issues were made up and proof taken, and the final decree adjudicated that complainants had shown title to nine-sixteenths of the grant, • and they were admitted with defendants to possession thereof. One link in complainants’ chain of title offered in evidence was a deed from Charles P. Maylier, by his attorney in fact, to Thomas 0. Lyon and Thos. H. Calloway. Calloway died, and his son and executor, Joe Calloway, executed a deed for eight-sixteenths of the grant to the East Tennessee Iron & Coal Company, predecessor in title of complainants. This deed from Joe Calloway, executor, to the coal company, was held to be void except as to one-sixteenth undivided interest owned by him by inheritance.
After that suit was brought and after the final decree therein, the East Tennessee Iron & Coal Company, with another, filed a bill in the chancery court of Clinton against the heirs at law of Thomas Calloway, deceased,
The present bill is filed upon the assumption that complainants have acquired a new title to seven-sixteenths of the land since the former suit of Bird v. Phillips, in which they relied upon the deed of Joe Calloway, executor, to convey the eight-sixteenths interest of his father, Thomas Calloway. They have made no new purchase and have received no new deed. But at the time of the decree of the chancery court at Clinton, divesting title out of the heirs of Calloway and vesting it in the coal company, complainants were the holders of the general warranty deed of the company for the title so acquired, and it is familiar law that this title passed to complainants by operation of the covenats in their deed. Woods v. Bonner, 89 Tenn., 411, 18 S. W., 67;Robertson v. Baines, 2 Humph., 383; Susong v. Williams, 1 Heisk., 630.
At common law, a judgment in ejectment was not conclusive on either party. Russell v. Stinson, 3 Hayw., 42; Blount et al. v. Garen, 3 Hayw., 88.
“Any such judgment in an action in ejectment is conclusive upon the party against whom it is recovered, not under disability at the time of the recovery, and all persons claiming under him by title accruing after the commencement of the action.”
This modification of the common law rule relates alone to judgment in action of ejectment recovered against a defendant in such action, and has no application to a subsequent suit brought by an unsuccessful plaintiff in ejectment upon a new title acquired after the commencement of the suit. The title of plaintiff in ejectment is adjudged as of the date of the bringing of the suit. Fowler v. Nixon; 7 Heisk., 720.
And a judgment against plaintiff dismissing his suit merely adjudges that at the date of the suit he was not entitled to recover. It does not determine that the defendant has any title to the land.
Upon the general proposition that a judgment adverse to complainant in one action to recover land is not res ad judicata that precludes another action for the same land against the same parties based upon another title subsequently acquired, and not- involved in the first suit, there seems to be no disagreement in the authorities. Gore v. Gore, 101 Tenn., 620, 49 S. W., 737; McKissick v. McKissick, 6 Humph., 75; Freeman on Judgments, vol. 1, section 329; Herman on Estoppel; Black on Judgments, vol. 2, section 656.
“There can be no doubt that a judgment rendered in an action to recover the possession of real property, under the system of pleading and practice adopted in this State, is, as to all matters put in issue and passed on in the action, conclusive between the parties and their privies, and a bar, in another action between the parties or their privies, when the same matters, are directly in issue. The bar of a judgment in such an action is, however, limited to the rights of the parties as they existed at the time when it was rendered; and neither the parties nor their privies are precluded by the same from showing, in a subsequent action, any new matters occurring after its rendition, which give the defeated party a title or right of possession.” Black on Judgments, vol. 2, sec. 626.
Mr. Yan Fleet in his work on Former Adjudication (volume .1, p. 376) says:
“A person having purchased land from an agent who made him a deed by virtue of a powrer of attorney from the executors of the deceased, owner, and having brought ejectment to recover it, and having been defeated upon the ground that the power of attorney was void, he may afterwards, without any consideration, take a deed from the executors themselves and maintain a new action of ejectment upon it; and the former judg ment will be no bar.”.
“The question then presented is: Is she precluded from setting up this after-acquired title by the result of the former litigation? If so, then we will have this anomalous condition: That complainant was defeated in the former suit because she had no title, and is to be defeated now, by reasons of the decree in that clause, when she presents, upon the averments of her bill, admitted to be true by demurrer, a paramount legal title, acquired by her since the. termination of that cause.
“We are aware of no case that would stand as authority for such a' result. On the contrary, the rule is that a party will not be prejudiced by a judgment as to rights not then accrued.” 101 Tenn., 622, 49 S. W., 738.
This is not the case of where the title papers of a complainant in ejectment were excluded from evidence