64 Neb. 506 | Neb. | 1902
This is an action to quiet the title to certain lands in Wayne county. The petition contains the usual allegations. The answer admits that the plaintiff holds the legal title to the lands, but avers, in effect, that at the time such title was acquired the plaintiff and the defendant were copartners, and said title was acquired with the funds of said copartnership, and taken in the name of the plaintiff in trust for its use and benefit, and that no accounting or settlement of the partnership affairs has ever been had between said parties. As a further defense, it is alleged that- in an action in ejectment, brought by the plaintiff against the defendant herein, to recover possession of a
The principal question, and the decisive one in this case, is that raised by the plea of res adjudicate. The record and the evidence in the ejectment suit are in evidence in this case. From those it conclusively appears that, except for the plea of res adjudicate, the defendant pleaded the same defense that is pleaded in this action. It also appears that the title to the whole of the lands involved in the present action, including those involved in the ejectment suit, was acquired at the same time, and, so far as the parties to this suit are concerned, in the same manner, with the same understanding, and as a result of the same venture. From the pleadings, evidence, and instructions of the court, it is clear that the verdict in the ejectment suit involves a finding that the acquisition of the legal title by the plaintiff to the lands involved in the ejectment suit was by means of partnership funds, and as the result of a partnership venture. The plaintiff insists that such facts do not sustain the plea of res adjudicate. In support of this position we are cited to many authorities, but none of them are satisfactory. Considerable obscurity may be avoided by keeping in mind the distinction between a judgment, urged as a technical bar to another action, and one- that is urged as conclusive as to some one or more points tried and determined in a former action. In Cromwell v. Sac County, 94 U. S., 351, the court says: “There is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon
It is recommended that the decree in favor of the plaintiff in this case be reversed, and the cause remanded for further proceedings according to law.
By the Court: For the reasons stated in the foregoing opinion, the decree in favor of the plaintiff is reversed, and the cause remanded for further proceedings according to law.
Reversed and remanded.