46 Pa. 9 | Pa. | 1863
The opinion of the court was delivered, July 1st 1863, by
This was a third action of ejectment, brought by the plaintiff against the defendants below and defendants in error, to recover the undivided half of a tract of land in Cumberland township, Adams county. The first ejectment was brought in 1824, by David Witherow, under whom the present defendants claim, against Peter Epley, with whom the present plaintiff is in privity. It resulted in a verdict and judgment against David Witherow, on the 28th of January 1825. In 1843 another ejectment was brought by David Witherow against Samuel B. Epley, the heir of Peter Epley, and one Jacob Meyers. To this second suit Henry Meyers, a purchaser under Samuel B. Epley and the present plaintiff, subsequently became a party defendant, and on the 17th day of August 1859, a verdict and judgment were recovered against the defendants in it, and the judgment was subsequently affirmed in this court. The present action, being the third ejectment, was then brought by Henry Meyers against the heirs of David Witherow, and the title which the plaintiff sets up is an equity growing out of an alleged parol sale, made by David Witherow to Samuel Witherow, whose title Peter Epley bought at sheriff’s sale.'' On the trial, a principal question, and the only one now presented to us, was, whether the first verdict and judgment are conclusive of the right between the parties. ' The court below was requested by the plaintiff to charge the jury as follows : “ If the jury find that the present action of ejectment is between the same parties or their privies, and for the same property as the action of ejectment brought by David Witherow against Peter Epley to No. 68, August Term 1824, which has been given in evidence, and that on the trial of that case the titles of the respective parties submitted to the court and jury, and passed upon, were as described and set forth by the honourable' Thaddeus Stevens, in his depositions given in evidence on the present trial by the' plaintiff, and that on that
The argument of the plaintiff in error is, that the case is within the rule laid down in Seitzinger v. Eidgway, 9 Watts 396, that one verdict and judgment in an action of ejectment, brought to compel the specific execution of articles of agreement for the purchase and sale of land is conclusive between the parties, and a bar to any subsequent action, it being regarded, as a bill in equity, and not as a possessory action at common law. It is insisted that the testimony of Mr. Stevens, as detailed in the deposition to which the point proposed refers, shows that in the ejectment brought in 1824, Peter Epley, through whom the plaintiff now claims, defended his possessions under the same parol purchase from' David Witherow, which the plaintiff now sets up; that the defendants are the heirs of David Witherow, and that consequently the verdict and. judgment rendered in favour of Epley was in effect a decree that the parol sale should be carried into specific execution. Hence it is argued that as a decree of a chancellor directing the specific performance of a contract is final, unless corrected by bill of review, or changed on appeal, that verdict and judgment must be final, and conclusively determine the right between the parties and their privies. The argument has been very ably pressed, and if the facts proved by Mr. Stevens were simply as assumed, it would be convincing. ■ .
No doubt the decision made in Seitzinger v. Eidgway was unexpected when it was made, and the doctrine asserted took most members of the ’ legal profession by surprise. . What are well known in this state as equitable ejectments, those brought by a vendor by articles of agreement against his vendee in possession, the object of which is to enforce payment of the purchase-money, or those brought by a vendee against his vendor to compel a compliance with the contract, had been in use in this state long before Seitzinger v. Eidgway arose, and long before the passage of the Act of 1807. In Haws v. Norris, 4 Binn. 77, decided in 1811, they are spoken of as having been introduced into practice at a very early date. They were introduced as a necessity, growing out of the absence of any distinctive court of equity. Hence parties were allowed to resort to a common law form of
We do not accede to the position taken by the defendants in error, that the record of that ejectment must show, unaided by parol testimony, that the equitable title was then passed upon and decided. Notwithstanding what has been said in some eases, it is well established, in reason and authority, that where a record is general it may be shown by parol what were the matters in litigation. The record may be explained though it cannot be contradicted. The matters in dispute may be identified. Were it not so, the generality of pleadings in many cases would greatly abridge the benefit of the rule that makes a judgment conclusive of the matters adjudicated. Authorities in abundance may be found collected in Hill & Cowan’s Notes to Phillips on Evidence, note 590.
It might, indeed, be argued with much force that the effect of an adjudication in favour of the alleged equitable title, in 1825,
It should be premised, that, as estoppels prevent parties from alleging the truth, and as they are consequently not favoured by the law, they must be certain to every intent: Co. Litt. 303 a, 352 h. A party is not concluded by a prior judgment, unless the precise question which he seeks to raise was then necessarily tried and determined. If in the former, a decision of the question was not essential to the rendition of the judgment, if the judgment could have been given without deciding the particular matter, and the record does not show that it was at issue, the judgment will not be considered as having settled it. As was said in Wood v. Jackson, 8 Wendell 36, “a verdict cannot be urged as an estoppel to the litigation of a fact, which was not ‘absolutely necessary to the finding of the verdict in the former suit.” Thus, in a personal action, if a defendant plead several distinct pleas, either of which if sustained is a bar to the recovery sought, a general verdict and judgment in his favour will not estop the plaintiff from controverting, in another suit, a fact asserted in one of the pleas, for the jury may never have passed upon it. In such a case a finding upon all the pleas is not essential to the judgment. For the same reason, if a plaintiff in ejectment set up several distinct titles, as a ground of recovery, a verdict and judgment for him' cannot show upon which title he prevailed; for if any one be good, he is entitled to the recovery. The record therefore lacks that certainty which is demanded for an estoppel. It may be that the jury find against all his titles hut one; but he is not the less entitled to a general verdict and judgment. The record does not show, and parol evidence cannot show, more than that, upon some one of the claims or defences, the facts were with him. It is true, a general verdict for a plaintiff, when there are several pleas', is a finding upon all the issues raised by the pleas. So a general verdict for a defendant, when a plaintiff sets up several claims or titles, is a finding against all the titles ; but in neither case is the converse necessarily true, for a general finding for the defendant, in the case
Applying these principles to the facts of .the case now before us, it is manifest that the verdict and judgment rendered in the ejectment brought in 1824, cannot be treated as conclusive of the right as between these parties, and estop the defendants from contesting the validity of the alleged equitable title under the parol sale. The deposition of Mr. Stevens, to which the point propounded refers, makes it quite clear that Peter Epley, the defendant in that case, did not rest his defence solely on an equitable title growing out of that sale and the payment of the purchase-money, or a part performance by the vendee. Mr. Stevens testified, indeed, that on the trial of the cause, reliance was mainly placed upon the payment of the purchase-money, stipulated in the parol contract of David Witherow, to sell to his brother Samuel Witherow, but he testified also that the defendant set up the silence of David Witherow, at a sheriff’s sale of the property, as an estoppel against his claim, and he further testified he thought the defendant also alleged, that David Witherow had conveyed the legal title to Samuel Witherow before the sheriff’s sale, at which the property was bought by Epley as Samuel’s, and that notice had been given in writing to produce the deed on the trial. It is true, the evidence that Peter Epley defended by the assertion of a legal title is not quite satisfactory. The witness says the defence was mainly the payment of the purchase-money. That can only mean that Epley’s counsel regarded it more than the other defences, but no one can tell which controlled the verdict of the jury. It is said the deed was called for, as evidence of payment. An undelivered deed is, however, no evidence of payment of purchase-money, and an allegation of the existence of a deed of David Witherow was an averment of legal title in a purchaser of the grantee’s interest. There was then, in 1825, as appears from the evidence, three distinct grounds of defence, either of which was sufficient, if made out, to protect the defendant in the ejectment then tried, and to sustain the verdict and judgment recovered. Of no one of them can it be said it was essential to the decision. The jury may have been satisfied there was no title, under the parol purchase, as in fact there was none, and yet have found for the defendant, on the ground that the plaintiff was estopped from asserting his title. Or they may have disregarded the asserted equity and the estoppel, and still returned a verdict for the defendant, believing that there had been a conveyance of the legal title by Daniel Witherow. It is impossible to say from the record, even aided by the parol evidence, what was decided by the verdict. All that can be said is, that one of the positions of the
We hold, for these reasons, that the answer of the court to the plaintiff’s point was correct, and this disposes of both the errors assigned.
The judgment is affirmed.