Lochner v. Garborina
3 Indian Terr. 664
Ct. App. Ind. Terr.
1901
Check Treatment
Clayton, J.

The position taken by appellee in this case, both in the court below and here, is that, notwithstanding the fact that the appellant in the court below was not a party to the suit brought by appellee against Bill Lochner et al., yet, because of the fact that Miller, who was a party to that suit, was shown by appellant’s affidavit in the injunction case to have been his lessee of the land embraced in both suits, and the further fact that appellant was a witness in the Bill Lochner case, such privity of estate between them, and conduct of appellant in relation to the suit, is shown as will render the judgment in that suit binding upon him, and estop him from setting up his title against it. While it is true that in some of the states it is held that where ejectment is brought against the tenant in possession, and he gives due and legal notice to his landlord, and the latter has an opportunity to come in and defend, the landlord is bound by the judgment against the tenant, yet we think these decisions are against the better reasoning and the weight of authority. Freeman, in his work on Judgments (volume 1, § 169,) says: “A landlord is not, in general, affected by any litigation against or in favor of his tenant in respect to the demised premises; but if the issue is such as involves the lessor’s title, and he assumes the defense or the prosecution of the suit, the judgment operates upon his *669title as though he were named as a party to the action. ” See, also, Id. § 185. Boles vs Smith, 5 Sneed, 105; Stout vs Taul, 71 Tex. 439, 9 S. W. 329; Orthwein vs Thomas (Ill. Sup.) 13 N. E. 564; Smith vs Gayle, 58 Ala. 600; Brush vs Cook, Brayt. 89; Bennett vs Leach, 25 Hun. 178; Kent vs Lasley, 48 Wis. 257, 4 N. W. 23; Samuel vs Dinkins, 12 Rich. Law, 172, 75 Am. Dec. 729; Valentine vs Mahoney, 37 Cal. 389; Chant vs Reynolds, 49 Cal. 213; Bartlett vs Gaslight Co., 122 Mass. 209; Chambers vs Lapsley, 7 Pa. 24. The case of Chirac vs Reinicker (decided by the supreme court of the United States) 2 Pet. 617, 7 L. Ed. 538, is a case in point. Reinecker was the landlord. Judgment in ejectment had been rendered against his tenant, and this judgment was offered in evidence to show title of the plaintiff in that suit. The supreme court of the United States, speaking through Justice Story, say: “Upon consideration of the question presented by the third exception above mentioned, we retain the opinion that the record in the ejectment suit was not conclusive evidence upon persons not parties to the record; but we are also of the opinion that it was prima facie evidence of the plaintiff’s title and possession against Reinicker, under the circumstances adduced in evidence. He had full notice of the suit, and had the fullest means to defend it. The parties upon the record were his agents and tenants, and he, in effect, though not in form, took upon himself the defense of the suit. ” Even in so strong a case the supreme court of the United States hold that the record is only prima facie evidence of title and possession. In this case the only evidence that appellant had notice that his land was embraced in the suit, and took upon himself the defense of the case, is that he appeared as a witness at the trial, and testified that he had no interest in the land in controversy. In this case he testifies that that statement was true, that the land was not embraced in the complaint, and that Miller was not his tenant at all before the suit was brought, but afterwards moved over onto one of his places, *670where he lived for a short time; and yet the court below held that the record against him was conclusive; that he was absolutely estopped to deny the record and to show his title. Freeman, in his work on Judgments (volume 1, § 185), says: ‘ ‘If the landlord actually takes upon himself the defense of the suit brought against his tenant, and conducts the litigation to the end, he would seem, on principle, to be bound by the final result. We have not, however, discovered any decision necessarily affirming that even under such circumstances the landlord is bound by the judgment against his tenant; and perhaps it is fairly inferable from the decisions upon the subject that it is only when the landlord is formally made a party defendant that he becomes a party, as between himself and the plaintiff, so as to be estopped by a judgment in favor of the latter. ” See, also, authorities cited in .foot note 4. The evidence in this case, instead of showing that the appellant defended the case of his brother, Bill, shows that he did nothing but testify, and, in all probability, was not even aware that the land now claimed by him was in litigation in the suit. Under the circumstances, it was certainly error in the court to instruct the jury to find their verdict for the defendant upon the ground that the plaintiff was estopped by the record of the other suit to show his title. Let the case be reversed and remanded.

Townsend, C. J., and .Gill and Raymond, JJ., concur.