149 Ky. 555 | Ky. Ct. App. | 1912
Opinion of the Court by
Affirming.
In June, 1882, Jessie Phillips deeded to Frank Phillips a tract of land. This deed was put to record in July, 1882, and the recorded paper recites this condition:
“This deed is to Frank Phillips; if he should die without children, this land shall go to his child bjr tlie Rowe woman; if land he sold for any debt of Frank Phillips, then the land goes to his children if he has any, and if he has no children then to the said child he has by the Rowe woman.”
In 1907 the children of John E. Phillips — he being then deceased — brought a suit in equity against the Big Sandy Company, which company was a remote vendee of Frank Phillips. In this suit they asserted that the deed in question only conveyed to Frank Phillips a life estate in the land described in the deed, and charged that the Big Sandy Company as a remote vendee of Frank Phillips was in the possession of the land, claiming the fee simple title thereof, and they sought to recover the possession of the land upon the ground that Frank Phillips only had and could convey a life estate in the land, and that at his death the remainder in fee descended to them as his children.
To this petition, which only involved the proper construction of the deed, a general demurrer was interposed by the Big Sandy Company, and the lower court being of the opinion that the deed vested the fee in Frank Phillips, dismissed the petition. From the judgment dismissing the petition the children of Frank Phillips prosecuted an appeal to this court, and in an opin
The matter thus rested until 1909, when this action was brought by the children of John É. Phillips against the Big Sandy Company to recover possession of the land upon the ground that the deed from Jessie Phillips to Frank Phillips, after it had been executed and delivered, had been altered in the following material respects: They averred that the condition in the deed as it was written, and when the deed was executed and delivered, read as follows:
‘ ‘ This land is deeded to Frank Phillips; if he should die without children, this land shall go to John E. Phillips; this conveys a life interest to Frank Phillips and cannot be sold by him, and should the land be sold for any debt of Frank Phillips, then the land goes to his children, if he has any or if he has no children then to the said John E. Phillips.”
But that the deed had been altered by some person unknown to them at a time they were unable to fix the date of, so that the recorded instrument contained the condition hereinbefore set out.
The Big Sandy Company, for the defense to this action, after putting in issue the question of the alteration of the deed, set up and relied on the plea of res judicata as a bar to the action. After the case had been prepared for hearing, it was submitted to- the lower court, and a judgment entered dismissing the petition, and from this judgment the children of John E. Phillips prosecute this appeal.
The Big’Sandy Company for defense to this aeof res judicata present a good defense to the action?' The suit brought in 1907 by the children of Frank Phillips against the Big Sandy Company to’ obtain a construction of the deed was between identically the same parties plaintiff and defendant as the suit charging tbe alteration of the deed that we are now considering. In the first suit the children of Phillips did not question the correctness of the recorded deed. They rested their cause of action upon the ground that under the condition in the recorded deed, Frank Phillips only took a life estate in the land. In other words, the only question presented in the first suit and the only question that could have been or was decided in that suit, was whether or not under the condition in the deed Frank Phillips took
“Where a given matter becomes the subject of litigation in an adjudication by a court of competent jurisdiction, the court requires the parties to bring forward their whole case, and will not, except under special circumstances, permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have from negligence, inadvertence or even accident omitted a part of their case. The plea of res judicata applies not only to the point upon which the court was required by the parties to form an opinion and pronounce judgment, but to every point which properly belonged to the subject of litigation and which the parties exercising reasonable diligence might have brought forward at the*559 time.” To the same effect is Frances v. Wood, 81 Ky., 16.
These cases go to the extent of expressly holding that the plea of res judicata applies not only to the point upon which the court was required by the parties to form an opinion and pronounce judgment, but to every point which properly belonged to the subject of litigation and which the parties exercising reasonable diligence might have brought forward at the time. But, we do not understand these opinions to mean that a judgment in an action between the same parties on a given state of facts will be a bar to another action between the same parties upon an entirely different state of facts and facts that were not in any manner presented by the pleadings or evidence in the'first suit, and that were not and could not have been in any state of case considered by the court in determining the rights of the parties in the first suit. The statement in the Davis case, that parties must bring forward their, whole case and will not generally be permitted to relitigate matters which might have been brought forward but were not from negligence or inadvertence, reférs only to- such matters as might have been considered and adjudicated in disposing of the issues raised in the first action. It does not mean that matters that could not in any state of case have been determined in the first action will nevertheless be treated as having been determined by the judgment in that action. Courts of last resort are quite uniform in their rulings upon the subject of res judicata, and the view we have expressed is not only in harmony with the prevailing doctrine on the subject, but in accord with the opinions of this court as properly interpreted. As illustrating the manner in which the subject has been treated we may notice Russell v. Place, 94 U. S., 606, 24 L, ed., 214, in which the United States Supreme Court said:
■ “It is undoubtedly the settled law that a judgment of a court of competent jurisdiction upon a question directly involved in one suit is conclusive-as to- that question in another suit between the same parties. * * * ■ To render the judgment conclusive, it must appear by the record of the prior suit that the particular matter sought to be concluded was necesarily tried or determined; that is, that the verdict in the suit could not have been rendered without deciding that matter; or, it must be shown by extrinsic evidence consistent with the rec-*560 ord that the verdict and judgment necessarily involved; the consideration and determination of the matter.”
And City of New Orleans v. Citizens Bank, 167 U. S., 371, 42 L. ed., 202, where the rule was thus stated:
“But where the second action between the same parties is upon a different claim or demand, the judgment in' the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. In all cases therefore where it is sought to apply the estoppel of a judgment rendered upon one cause of action to the matters arising in a suit upon a different cause of action, the inquiry must always be as to the. points or questions actually litigated and determined in the original action — not what might have been thus litigated and determined. Only upon such matters is the judgment conclusive in another action.” To the same effect is Mobile County v. Kimball, 102 U. S., 691, 26 L. ed., 238; Reynolds v. Stockton, 140 U. S., 254, 35 L. ed., 464; Doe v. Carpenter, 18 Howard (U. S.) 297, 15 L. ed., 389.
In the light of these authorities, we think it clear that the judgment in the first action was not a bar to the maintenance of the second. Indeed, in the absence' of authority upon this subject, the question upon principle seems free from doubt.
Passing this we may assume that the law is well settled that the fraudulent or unlawful alteration of a deed after its execution and delivery does not affect the rights of the parties as they existed before the alteration- — See note to Burgess v. Blake, 128 Ala., 105, 86 Am. St. Rep., 82 — and so the remaining .question is — is the evidence sufficient to show that the- deed was altered in the manner claimed by the children of Frank Phillips? The original deed is not in the record, and it appears that it has been lost or destroyed. Nor is there the testimony of any person who ever saw this deed in its original form. Aside from some mutilations and alterations that appear in the record book in which the deed is recorded, and that will be hereafter noticed, there is no evidence of its mutilation or alteration, except the statements of some four or five persons who say that they heard Jessie Phillips say that he intended that Frank Phillips should only have a life estate. The county clerk ■of Pike County, in whose office the recorded deed was
“Beginning on page 46 of said deed book, near the last part of line 11, and. including line 12, reads as follows: ‘his child that he had by the Bowe woman,’ that is the first erasure of said deed. And in -line 15 on page 46 of said deed, near the middle of said line, it seems there has been an erasure, and it reads: ‘child he has by the Bowe woman;’ that is all of the erasures. Q. The erasures you speak of in said deed, state whether or not the writing you have just read is the same as the writing of the other parts of the deed? A. It doesn’t look to me to be the same writing; I cannot tell; I am not well enough up on that to answer that question to tell whether it is or not. Q. State whether or not all the erased parts of said deed is filled in by other writing? A. There seems to be an erasure in last part of line 12 on page 46 which has not been filled in. Q. State whether or not the parts of said deed that you have just read as being erased is written over the erasures? A. Yes sir. Q. You mean that after that part of the deed was erased, that the part you have just read as being ah erasure was written over the erased part? A. Yes, it was written over the part that resembles the erasure. Q. You don’t know when these erasures were made, do you? A. No sir, I do not. Q. Is it not a fact that in your experience as clerk that mistakes are sometimes made when recording deeds, which are erased and the corrections made? A. Yes sir, I have made a few mistakes like that and erased them; but that doesn’t occur often with me.”
There is also filed a photographic copy of the deed as it appears on the record, and this copy shows the erasures and the words rewritten as testified to by the clerk. How, or, when, or by whom these erasures were made on the record does not appear. Possibly the person who recorded the deed may have recorded it incorrectly, and upon discovering the error, have made the erasures and changes in the language of the deed. Possibly these erasures and changes may have been made by a stranger; and, it is possible they may have been made by Jessie or Frank Phillips. This, however, is all mere speculation. But we are asked to say that the evidence of these erasures and changes is sufficient to warrant us in saying that the deed as originally executed