Bridgeforth v. Gray
39 Miss. 136
Miss.
1860
Check Treatment
Harris, J.,

delivered the opinion of the court:

This is an appeal from the Chancery Court of De Soto county. The same case was before this court on demurrer to the bill, at a previous term, by appeal from the same court overruling the demurrer. The judgment of the court below .was then affirmed, settling the construction of the will of David Bridgeforth, out of which this litigation grows. That construction, according to the settled doctrines of this court, is the law of this case here; 17 Vern. 379; 4 Stew & Por. 40; 10 S. & M., Loffland et al. v. Martin; Carmichael v. Phacly, Hunter's Lessee, (not reported.) Defendants, by their answer, attempt to avail themselves of a decree of the Chancery Court of Giles county, Tennessee, settling the construction of this will in opposition to the previous decision of this court, on the same subject, in the case now before it. The effect of the answer is simply to plead the decision of the forum *141when the will was made, in bar of the decision of this court, made at a former term, upon which the parties have acted. This is not allowable upon well-settled principles. Had the plea relied upon an adjudication of the matter in controversy in the foreign forum, and a title thereby acquired and perfected by division of the property and possession under it in due course of law, this would have been a legitimate matter of defence to be made in the answer. But the answer stops short of this: it makes the record of the Chancery Court of Giles county, Tennessee, an exhibit, and shows on its face that while the decree was made for partition according to the construction of the will then .pronounced, yet no such partition has ever taken place, and no such title has therefore ever been acquired as can be plead in bar of the recovery here.

The Chancery Court of De Soto county, Mississippi, having conformed its judgment to the opinion of the Chancery Court of Giles county, Tennessee, and dismissed complainants’ bill, this decree must be reversed, and cause remanded for a decree and for further proceedings in accordance with the principles of the previous opinions of this court, and the opinion now expressed.

A petition for a re-argument was filed, but a re-argument was refused.

Note. — This case was decided at October term, 1858, and omitted to be reported with the cases there decided. *