215 Pa. 209 | Pa. | 1906
Opinion by
The principal and controlling question here is whether the adjudication in the equity case is a bar to the present
George D. Jackson died testate November 23, 1879, and by his will he appointed Bernice W. Jackson and George C. Jackson his executors, to whom letters testamentary were issued December 15, 1879 by the register of Sullivan county. He devised all his property, real and personal, to his executors in trust, to sell, lease or convey the same and after payment of his debts, the residue was to be for the sole use and benefit of his wife, Bernice W. Jackson, for life, and after her death to be divided equally among his six children.
On July 9, 1897, four deeds were executed and delivered to Thomson, the defendant, one by Jackson’s executors for an undivided interest in certain lands; one by the same parties for an undivided interest in trees, bark and timber on other lands; one by Bernice W. Jackson for timber, bark, trees, etc.; and one by George C. Jackson and wife for an undivided interest in certain lands. Subsequent to the execution and delivery of the deeds, and prior to bringing the equity suit, both of the executors died and W. W. Jackson and Blanche W. Sturdevant were appointed trustees by deed of all the parties interested in the estate. Thomson took possession of the land and timber conveyed to him by the deeds, cut and removed a large quantity of timber and bark and mined and removed coal from the lands.
After setting forth the above facts, the bill avers, inter alia, as follows: that at the time the several deeds were executed
After consideration of the case on the bill, answer and proofs, the court entered a decree dismissing the bill.
It is difficult to see how there can be any serious dispute as to what the issue was in the equity case and what was deter
As counsel of both parties have referred to the findings of fact and law and the opinion of the trial court and the opinion of this court to sustain their contention as to what was adjudicated in the equity case, we will also examine the opinion of this and the trial court which show what was involved and decided in that ease. In his opinion in the equity case, the learned trial judge said: “The plaintiffs contend that they (deeds) do not contain the entire contract between the parties; that there was a parol agreement by which Thomson was to
In reviewing the case, Jackson v. Thompson, 208 Pa. 622, in this court it was said : “ The court below very properly disposed of the case on the issues raised by the pleadings, and on this appeal we are likewise confined within the same limits.” After stating the issues raised by the pleadings and that they were found in favor of the defendant, the opinion continues : “ It is, therefore, found that the deeds conveyed the property absolutely as their terms purport to do and that they contain the entire contract between the parties. Unless we reverse these findings of fact by the learned judge, the plaintiffs are not entitled to the relief prayed for in the bill.” In concluding, the opinion says: “We will conclude by saying, as suggested by the trial judge, that the allegation in the bill, if supported by the facts, would convert the deeds into mortgages with parol defeasances, incapable of enforcement by reason of the Act of June 8,1881, P. L. 84, and that a trust ex maleficio is neither averred nor proved. It is entirely unnecessary to consider many of the questions suggested in the argument of the appellants. They are not raised by the pleadings nor involved in the issues presented here for determination.”
This action is an ejectment for an undivided one-third interest in one of the tracts of land named in the bill filed in the equity case and the plaintiffs are privies in title with those in the equity case, and Thomson is the real defendant in both cases. On the trial of the cause, and after the plaintiffs proved title in their ancestor, the defendants offered in evidence the deed of July 9, 1897 to Thomson. They then offered in evidence the record of the equity case which, against the plaintiffs’ objection, was admitted with this limitation : “ So far as it is offered for the purpose of establishing that the thing in controversy here was adjudged in the former suit, only such things will be held to have been adjudged as were either directly or necessarily and materially involved in the equity issue, and
It will thus be seen that this action was brought to recover the premises in dispute on the ground that Thomson held the title and possession as a trustee ex maleficio. The learned court below so held, and, being of opinion that the question had been adjudicated in the equity suit, further held that it was res adjudicata, and the plaintiffs were concluded by the decree in that case. This, we think, was manifest error. In the former suit, the bill prayed for an accounting, for the payment of the surplus money over and above the amount required to discharge certain obligations, to secure the payment of which the real estate was convejmd to the defendant, Thomson, and for a reconveyance of the property to the plaintiffs. The prayers of the bill were refused, not only because the act of 1881 prevented the enforcement of the parol defeasance, but because it was found as a fact that Thomson had made no agreement to account or reconvey. The bill in that case did not directly nor inferentially aver the matters stated in the plaintiffs’ offers of proof in this case and which convert Thomson into a trustee ex maleficio. The question raised by these offers, that Thomson was a trustee ex maleficio, need not have been and was not passed upon in the former suit, but on the contrary, as we have
In Kitchen v. Campbell, 3 Wilson, 304, the court said: “ What is meant by the same cause of action is, where the same evidence will support both actions, although the actions may happen to be grounded on different writs; this is the test to know whether a final determination in a former action is a bar, or not, to a subsequent action.” The same principle is announced in 1 Greenleaf on Ev., sec. 528, and 1 Starkie on Ev. * 318, and is recognized and applied in Schriver v. Eckenrode, 87 Pa. 213. Applying this test to the case in hand it is apparent that the plea of former adjudication cannot be sustained, as the same evidence will not support a cause of action which requires proof of an express parol agreement to reconvey real estate and a cause of action which requires proof that the holder of the title to the real estate is a trustee ex maleficio. The one requires
Regarding the adjudication in the equity case as not a bar to the present action of ejectment, we must reverse the judgment of the court below.
The judgment is reversed, and a venire facias de novo is awarded.