5 Denio 296 | N.Y. Sup. Ct. | 1848
There was proof tending to show that the close, described in the record given in evidence as the one on which the alleged trespasses were committed, embraced the seven acres for which this action was brought, and the cause was disposed of at the circuit, on the supposition that such was the fact. It might seem at first blush, that this could not be a correct conclusion, the seven acres being described as part of the land for which the Livingston patent ¡vas issued, while the close, mentioned in the record, is alleged to lie within the limits of the Yan Horne patent. This apparent incongruity may not, however, be decisive of the question,' for enough may remain in the description of each of said parcels of land, after rejecting the reference made to the patent, to locate the particular piece intended by the pleader; or it may be that both of the patents referred to, cover, to, some extent, the same tract of land. In either event it may be strictly true, that the land for which the present action was brought, constitutes part of said close described in the record. At all events, the case having been disposed of at the circuit, upon a point of law, which could only arise by establishing, to the extent of the parcel now in suit, the identity of the two pieces, we must necessarily, in reviewing that proposition, assume that such identity was fully shown. We must also assume, what seems hardly to have been proved, but to have been taken for granted, that, although a formal title to the entire close described in the record as that on which the trespasses were committed, had not been derived from Jackson by the defendant, he still had such a title to a part of said close which embraced the seven acres now in suit. Taking such to be the fact, it must follow that the proceedings and judgment proved by the record, were of the same force in favor of the defendant in this suit, that they
That such proceedings and judgment would create an estoppel oh the question of title to the entire close described in the declaration and covered by the plea, if title to that extent was shown to have been in controversy on the trial of that cause, may be conceded. But in the present case, no evidence out of the record was gone into, to show whether the whole, or a part only, of said close, was in question on the trial of the former action. That point, if material, as it certainly is, must be determined upon what appears in the record, for no light from without is furnished on the subject.
If a close is to be regarded, like a horse or an ox, as entire and indivisible, it will follow that a verdict and judgment on the question of title to such close, must, necessarily, be conclusive as to all the land of which it is constituted. Assuming the correctness of this principle, a plaintiff, in an action of trespass quare clausum fregit, the close being described in the declaration, and liberum tenementum pleaded thereto, can only recover by proving a trespass co-extensive, territorially, with the close as described. This, however, upon what has been taken for granted, would create no difficulty, for the principle assumed is, that a close is one and indivisible, so that a trespass on any one part of it is, necessarily, a trespass on the whole. But such is not the rule of law on this point. In trespass quare clausum fregit,, the plaintiff may recover oil proof
Unless we hold, which we clearly cannot, that a close is in its nature and legal essence, entire and indivisible, I see no way in which the decision at the circuit can be upheld. The record settles nothing as to the identity of the particular piece of land in question on the trial of the action of trespass. It may have been the seven acres for which this action of ejectment was brought; and it may have been a totally distinct parcel of the close. The question here is precisely such as would arise on the record of a recovery in assumpsit, on general counts for goods sold or money had and received, in which case the record could only be made conclusive as an estoppel, by showing the particular goods or money, brought in question on the trial of the cause. Had the defendant in the present case given evidence to show that the jury passed on the question of title to these seven acres of land, on the trial of the action of trespass, their verdict, right or wrong, would have been conclusive between parties and privies, while it remained in force, and this on the plain principle that a man shall not be twice vexed for one and the same cause, nemo debet bis vexari pro una at eadem causa. (Broom's Legal Max. 135.) There should be a new trial.
Ordered accordingly.