| Me. | Feb 5, 1889
Assumpsit on a promissory note secured by a mortgage of real estate in Waldo county. Tire pleadings are general issxre, and plea in bar.
On tlie same day that this suit was institxxted in the superior court for the county of Kennebec, the plaintiff brought a writ of entry in the coxxnty of Waldo for the purpose o£ foi'eclosing the mortgage. At the return term of court in that county, October 1887, the defendants appeared by counsel, and on the eighth day of the term the action was defaulted by agreement and jxxdgment as of mortgage entered for the plaintiff. The court, in the presence of counsel for plaintiff and defendants, adjudged the amoxxnt dxxe upon the mortgage in accordance with §§ 8 and 9 of c. 90, li. S., and a writ of possession was issxied at the expiration of two months after jxxdgment. Subseqxxexitly, at the December term of the sxxperior court in Kennebec coxxxxty, in this action upon the note, the defendants became defaulted, and at the hearing in damages before the court offered to show that certain payments had been made upon the note long prior to the date of the judgment in the other sxxit. The plaintiff seasonably objected to the admission of this evidence on the ground that the defendants were concluded, by the adjudication of the amount due and payable on the mortgage, in the suit in Waldo county. The court overruled the objection, admitted the evidence, and thereupon exceptions weré taken.
Was tlxis evidence admissible ? We thixik it xvas not, and that the exceptions must be sustained.
When an aotioxi is brought for the purpose of foreclosing a mortgage, the statute contemplates that there shall be two separate and distinct judgments, — the one based upon the title put in issue by the pleadings, and the other as to the amount due upon the mortgage. Ladd v. Putnam, 79 Maine, 568, 570. The latter follows the conditional judgment upon which the court determines; and adjxxdgcs the amoxxnt clue upon the mortgage. The conditional jxxdgment fixes the amount of the indebtedness secured by the mortgage, and is conclusive as to such amount. Merriam v. Merriam, 6 Cush. 91, 93; Burke v. Miller, 4 Gray, 114, 115; Sparhawk v. Wills, 5 Gray, 423, 427, 428; Minot v. Sawyer, 8
It is now the settled law that in such action the same defenses may be made, except the statute of limitations, which- might be made in an action upon the note secured by the mortgage. Ladd v. Putnam, supra; Vinton v. King, 4 Allen, 562; Davis v. Bean, 114 Mass. 361. “It opens up any proper matter of defense to the validity of the note in whole or in part.” Minot v. Sawyer, supra.
The judgment in the former suit was one inquired by the statute. It was between the same parties as in the suit now before us, and upon the same subject matter. The court could not adjudge the amount due upon the mortgage without determining the amount due upon the note secured by it. That note is the identical note in this suit. The evidence related to payments made long prior to the date of that judgment.
It is a principle of law too familiar to require any citation of authorities in support of it, that when a matter in controversy has once been inquired into and settled by a court of competent jurisdiction, it can not be again drawn in question in another suit between the same parties. Homer v. Fish, 1 Pick. 435, 439. Nor will it avail the defendants that the facts now offered in evidence did not in fact come in question. If allowed it would render the rule nugatory, as said by Parker, C. J., in the case last cited, and where it was held that it was sufficient that the action was of a nature to admit of such a defense, and that the party in the new suit might have availed himself of it. Greene v. Greene, 2 Gray, 361, 365; Sparhawk v. Wills, supra.
In Bigelow v. Winsor, 1 Gray, 299, 301, the doctrine is thus stated: “Whether it be a corirt of law or equity, of admiralty or of probate, if in the matter in controversy between the parties, with the same object in view, that of remedy between them, the court had jurisdiction to decide, it is a legal adjudication binding on these parties.” In addition to the foregoing authorities the following will be found to sustain the same doctrine. Walker v. Chase, 53 Maine, 258, 260; Lander v. Arno, 65 Maine, 26, 29; do. Howard v. Kimball, 308, 330; Burlen v. Shannon, 99 Mass. 200" court="Mass." date_filed="1868-03-15" href="https://app.midpage.ai/document/burlen-v-shannon-6415322?utm_source=webapp" opinion_id="6415322">99 Mass. 200, 202, 203.
The record in this case pertaining to the conditional judgment covers all facts necessary in determining the amount due at the date of that judgment.
But viewing this question in the light of the authorities we find that the court, in several cases, has held that where in a writ of entry to foreclose a mortgage, conditional judgment has been rendered, and the amount due thereon has been determined by the court, the defendant is estopped from afterwards setting up any defense, in a suit on the aróte, secured by sarcia mortgage. This was directly decided in the case of Burke v. Miller, 4 Gray, 114, 116.
In that case the court held, that the same question was involved and must have been determined in the former suit. Defense was attempted ira a suit upon the note, and the court say: “Upon examination of the conditional judgment which was reasdered in the former suit, it appears that the court did then determine that the amount of the note declared on, in the present action, was due to the plaintiff. The real question of indebtedness, therefore, which is now in issue between the parties, was not only involved in the former suit, but was in fact made the subject of an actual adjudication.”
The same is also true in tire case of Sparhawk v. Wills, 5 Gray, supra; Divoll v. Atwood, 41 N. H. 449; Betts v. Starr, 5 Conn. 550" court="Conn." date_filed="1825-06-15" href="https://app.midpage.ai/document/betts-v-starr-6573953?utm_source=webapp" opinion_id="6573953">5 Conn. 550; Holmes v. French, 70 Maine, 341, 344.
In the case of Minot v. Sawyer, 8 Allen, 78, which was a writ of errtry to foreclose a mortgage, the court affirm the doctrine, aiad say: “As already remarked, this judgmeaat is conclusive as to the amount legally due on the note. The defendant is compelled to raise the question of usurious interest in this suit, or be estopped from claimirrg the deduction hereafter.”
The entry must therefore be,
Exceptions sustained.