91 Mo. 320 | Mo. | 1886
This suit is by ejectment, to recover the possession of certain lands in Perry county. The petition is in the usual form. The answer admits that defendants are in possession of the premises, and avers that they were put in possession by virtue of a judgment and decree of the Wayne county circuit court, and, after denying the other allegations of the petition, sets up as follows:
“The defendants, further answering, and by way of new matter, say that the said pretended title and claim of the said plaintiff in and to said land has been fully, tried and adjudicated and settled in a certain cause in the Wayne county circuit court, at the term, 1876, thereof, wherein co-defendant, Thomas (x. Chadwick, was plaintiff, and Joseph Ellis, and James Preston, the plaintiff herein, were defendants, said action being a legal and equitable proceeding to try and determine the right to the title to said land. The court adjudged and found the title to said land to be in co-defendant, Thos. Gr. Chadwick; wherefore defendants here plead said prior adjudication, and trial, and judgment, in bar o| this action.” V
Defendants obtained judgment on the trial, from. wMch plaintiff has appealed, and, among others, assigns for error the action of the circuit court in receiving in, evidence the record and proceedings of a suit in the
The reception of this evidence was objected to, on the ground that one action of ejectment is not a bar to another action. While it may be conceded that one action of ejectment cannot be pleaded in bar of another, the rule is not of universal application, and is not without modification, as is shown by reference to the case of Chouteau v. Gibson, 76 Mo. 38. The facts set up in the defendant’s answer, in the suit brought by Chadwick against him, brings the case within the principle announced in the case of Chouteau v. Gibson, supra, where it is said: “Where, to an ejectment suit, the defendant therein sets up an equitable defence, and the cause is tried, and plaintiff has judgment, such equitable defence is res judicata, and defendant cannot thereafter recover by a proceeding to establish his equitable title so passed on in the former suit.”
Judgment affirmed,