The opinion of the court was delivered by
Powers, J.
The defendant filed a plea in bar to the plaintiff’s declaration in which he sets forth the proceedings of a former action of ejectment between these parties which he insists estop the plaintiff in this suit. The declaration in the former suit covers *437the same lands demanded in this, and an additional strip which is described in the former verdict and judgment, In other words, the plaintiff now seeks to recover the seisin and possession of part of the same premises demanded in the former suit. The plaintiff says that in fact the defendant was not in possession at the commencement of the former suit of that part of the demanded premises now sought to be recovered, but that he got into possession and ousted the plaintiff long after his first suit was brought. In the former suit the jury found that the plaintiff was entitled to recover the possession of that portion of the premises then demanded which lie within a distance of eighty rods from the west line thereof, and added that they so found on the ground that the plaintiff had gained title to that. much of the premises by an adverse occupation. The scope and effect of this verdict and the judgment thereon is the contention of the parties at this time. In the former suit, as already stated, the declaration sets forth the plaintiff’s right to the whole premises and the defendant’s wrongful oustef of the plaintiff from the whole ; the plea of not guilty put the whole declaration in issue, and the plaintiff was called upon to make out his right of possession to the whole premises. The parties litigated the question to the whole, precisely as the issue was made, and the result was as stated. The case is not like the cases cited in argument, where distinct and several claims were embodied in one action, and a recovery was had for part only, as in actions of assumpsit or on book. In such cases, as has been often decided, the identity of the matters litigated may be shown by parol; and a second action sustained for the matters not adjudicated. But in this case the declaration in the former case was a single claim to recover a specifically described piece of land, the title to which was alleged to be in the plaintiff. The plaintiff sought to establish his claim as thus made in his declaration. This was the issue made in the case. Under such circumstances, we think the verdict of the jury in favor of the plaintiff for part only of the premises which he essayed to show title to, was equivalent to a verdict for the defendant as to the residue. In Herman’s Law of Estoppel, section 68, it is said that when the plaintiff in this action avers title and right of possession in him*438self, and the defendant denies these allegations, the judgment operates as an estoppel in any future litigation between the same parties. The recent case of Cromwell v. The County of Sac, cited by the defendant’s counsel, and reported in the last December number of the Law Register, draws the distinction above alluded to in clear and concise terms. The court say : “ In considering the operation of this judgment [speaking of a former judgment], it should be borne in mind that there is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand, and its effect as an estoppel in another action between the same parties upon a different claim or demand. In the former case the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent suit. It is a finality as to the claim or demand in controversy, concluding parties and privies, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.” It is needless to multiply authorities.
The declaration in the former suit described the same lands now sued for. In that case the plaintiff averred his title and right of possession thereof and that the defendant was in possession, so that the thing sued for was the same in that suit and this. The plaintiff cannot now be heard to re-try his case by changing his allegations, and thus make a new case out of an old one. The evidence offered at best only tended to show a state of facts that are consistent with the claim that the former adjudication was partial. The plain implications of this record cannot be rejected for such reasons. The record shown in the case contains every element necessary to raise the estoppel, and it would do violence to well-settled law to allow it to be contradicted in the manner proposed.
Judgment affirmed.