181 Ky. 623 | Ky. Ct. App. | 1918
Opinion of the Court by
Affirming.
In the year 1892 W. R. Hamby sold to his son-in-law," the appellant, J. E. Douglas, two tracts of land for
The judgment does not disclose whether or not the chancellor in rendering it was controlled by the. conten-, tion that the matters attempted to be litigated were res{ judicata, and that the former judgment was a com-, píete bar to this action; but as this, in our judgment, is
In the suit of Troxell against Douglas, in which he recovered the judgment for the $175.00 as damages for the timber removed by Douglas from his land, Douglas, among other defenses, made this plea:
“Comes the defendant, j! E. Douglas, and James Douglas and adopting all and singular all their denials and allegations in their original answer, and for amended answer says. that pursuant to the agreement herein and contract which was entered into by and between the defendant, J. E. Douglas, and the plaintiff, J. B. Troxell, in which a deed was to be made to the land described in the plaintiff’s petition by W. R. Hamby and his wife to J. B. Troxell conveying to the said J. B. Troxell a certain tract of land. That it was the intention of the parties to said; deed and contract hereinbefore mentioned to reserve or except to the vendor, J. E. Douglas, the timber on a certain portion of the land conveyed in said deed; that the defendant, J. E. Douglas, had no knowledge of this not being in the deed until after this suit was brought; that the description of that portion of the land on which said] timber was reserved is more particularly described asi follows: All below the road leading to the residence of J. B. Troxell and on the north side of said road com tains about 75 acres, more or less.
“The defendant further states that said exception or reservation was not made in said deed, and that he isi now entitled to have said reservation or exception made,
“Wherefore: defendant prays that the court adjudge that the defendant, J. E. Douglas, is entitled to have reserved in said deed the timber on the tract of ground hereinbefore “described, and that the defendant, J. E. Douglas, and James Douglas be adjudged the owners of said timber. And finally they pray for their costs herein expended.”
It will, therefore; be seen that appellant in the formed action between the same parties set up as a defense the identical matters that he now attempts to assert as a cause of action, and for the purpose of defeating the judgment rendered against him upon tho same issue in the former action. It certainly requires neither argument nor citation of authority to prove that
Counsel for appellant, in so far as we are able to understand his argument, seems to base his contention upon the fact that his pleading in the former action, wherein he set up as a defense thereto substantially the same allegations as are now contained' in his petition in this action, was not styled a counterclaim and that he may now, under section 17 of the Civil Code, recover thereon; but there is clearly no merit in this contention as that section of the code only makes clear the right to recover on a claim which was not, though it might have been used as a defense by way of set-off or counterclaim in the former action.
The principal, if not the only, fact in issue in the former suit was whether the timber in question belonged!, to Douglas or to Troxell, and that question having been, decided in that action in favor of Troxell, Douglas cannot, of course, have it relitigated in this action, which is not such an action as is provided by the code may ba instituted under certain circumstances to have a prior judgment set aside or modified.
Wherefore the judgment is affirmed.