26 Me. 555 | Me. | 1847
The opinion of the Court, Siiepley J. not having been present at the argument, and taking no part in the decision, was drawn up by
The report in this case was probably drawn up by the counsel for one of the parties, and hastily agreed to by the counsel for the other, and hence it may have been signed by the presiding Judge without examination. It is certainly very defectively drawn. A deed introduced by the defendant is said to have been found by the jury, in a former suit between these parties, and in reference to another piece of
When the presiding Judge intimated an opinion that the former decision was conclusive, it must probably have been with the understanding, that no other ground was relied upon,
I have remarked, that the former judgment, with proof that the decision was upon the ground, that the deed to the defendant was fraudulent as against creditors, and no other ground appearing to uphold it, in reference to the premises in question, might be conclusive ; and this seems to be well settled in the cases of Wood v. Jackson, 8 Wend. 9; Howard v. Mitchell, 14 Mass. R. 241; Gardner v. Buckbee, 3 Cowen, 120; Burt v. Steenburgh, 4 ib. 559; Adams v. Barnes, 17 Mass. R. 365. In those cases it was distinctly held, that if the party in whose favor a judgment had been obtained, in which the same point had directly occurred as the ground of decision, and which ho could not present in a plea, he might give it in evidence against the same adverse party; and that, under such circumstances, it would be as effectual as if pleaded specially.
The case at bar, being a writ of entry, it may be presumed, although nothing appears in the report about it, that nul dis-seisin, was pleaded. In such case, the plaintiffs could not be apprised, that the defendant would again set up his deed in defence. Hence he could not, with propriety, reply that the deed had been adjudged fraudulent and void. His only alternative was, on the introduction of it, to give that matter in evidence. In the case of Gardner v. Buckbee, before cited, it appeared that a note of hand, then in suit, formed part of the supposed consideration for the promise contained therein, and that another note, forming another part of the same consideration, had before been put in suit, and had been adjudged
New trial granted.