— 1. It is the duty of a tenant for life to keep down ordinary charges for taxes. lie can not suffer them to become delinquent, the estate sold for their payment, and become its purchaser, divesting the estate in reversion or remainder. — Claims v. Chabert, 3 Edw. Ch. 312; 4 Kent’s Com. 79. This duty devolved upon the appellant Pruitt, when he succeeded to the life-estate of Mrs. Lee, and it would be inequitable to allow him to set up any title derived from a sale of the lands for the payment of taxes, to defeat the estate in reversion.
2. The decree rendered in the suit of Georgia Eeese for a reformation and foreclosure of the mortgage executed by Holly, is not a bar to the present suit. The questions now in controversy were not litigated or decided in that suit. A judgment or decree is final and conclusive, operating a bar to a second suit, only when it appears with reasonable certainty that the matters in controversy in the second suit were involved in the first. If this is not apparent on the face of the record of the first suit, there are cases in which' it may be shown by extrinsic evidence. But in such cases the burden of proof rests on the *372party maintaining the affirmative. — Strother v. Butler, 17 Ala. 733.' “
3. A material fact upon which the right of the complainant to relief depends, is the purchase of the laude by her husband, and his payment, of the purchase-money. The fact is not admitted, but-is denied by the respondents who liave answered. The burden of proving it rested upon the complainant — it is an affirmative fact lying at the foundation of her right to relief. Of the fact- we find' no evidence in the record, other than the recital in the report made by Tyson to the court of probate, which was followed by a decree of the court authorizing the making of title to the complainant’s husband. Tbe recital in the report of sale of the subsequent sale to the husband of the appellee, and his payment to his vendee of the purchase-money, is of a fact upon which Tyson, as administrator, was without authority to report; it is no more than his mere declaration, and is not competent or admissible evidence. It ¡ is subject to tbe further objection, that he does not state the fact upon his own knowledge, but upon mere hearsay, on bis information and belief. Tbe decree of the court of probate, authorizing title to be made to the husband, was eoram nonjudice. The only decree which the court could render at that time, was for the making of title to the purchaser at the sale made by the administrator. Anderson v. Bradley, 66 Ala. 263. Purchasers from him acquired an equitable title, of which courts of equity alone could take cognizance and enforce. This fact not being proved, the chancellor erred in rendering a decree granting relief to the complainant.
