| Mass. | Jan 27, 1908
If the plaintiff has been evicted by a paramount title from the easement in the alleyway which passed under the deed as appurtenant to the premises, the defendant’s covenant of warranty was broken, and she became entitled to recover damages for the breach, Gilman v. Haven, 11 Cush. 330. Tobey v. Taunton, 119 Mass. 404" court="Mass." date_filed="1876-01-10" href="https://app.midpage.ai/document/tobey-v-city-of-taunton-6418390?utm_source=webapp" opinion_id="6418390">119 Mass. 404. Kramer v. Carter, 136 Mass. 504" court="Mass." date_filed="1884-02-29" href="https://app.midpage.ai/document/kramer-v-carter-6421240?utm_source=webapp" opinion_id="6421240">136 Mass. 504, 507, 509. Smith v. Richards, 155 Mass. 79" court="Mass." date_filed="1891-11-27" href="https://app.midpage.ai/document/smith-v-richards-6423982?utm_source=webapp" opinion_id="6423982">155 Mass. 79, 82.
Upon the estate was a stable used by the plaintiff’s husband, the only entrance to which for horses.was by a door which opened on the westerly side of the way, and a dispute as to her title having arisen between the plaintiff and one Bergeron, an abutting owner on the easterly side, he brought an action of tort in the nature of trespass in which he finally obtained judgment for nominal damages. At the trial, the plaintiff relied upon the judgment as conclusive proof' of an ouster from any use of the way. 'If the defendant had not been notified of the former action, still the record was admissible to prove an eviction when supplemented by the evidence introduced by the plaintiff, that title was directly put in issue. Merritt v. Morse, 108 Mass. 270" court="Mass." date_filed="1871-10-15" href="https://app.midpage.ai/document/merritt-v-morse-6416628?utm_source=webapp" opinion_id="6416628">108 Mass. 270. But not having been originally a party to the action, he. would not be concluded unless not only notice of the action was given to him, but he was tendered the opportunity to take upon himself its defence. The earlier practice was to vouch in the warrantor so that he would be estopped to deny the title by which the tenant suffered an eviction, and while formal notice in writing, because of the ease and accuracy of proof thereby afforded, is desirable, yet it may be oral. The warrantor whether he appears and defends, or makes default, is then considered in law so far a party or privy as to be concluded by the judgment. If the defendant was seasonably notified, and offered the defence, this was sufficient to enable him, if possible, to protect the title, and avoid an action for damages on his covenant. Oliver’s Prec. (4th ed.) 840. Jackson on Real
A more important question is the conclusiveness of the judgment. The declaration in the action for trespass consisted of two counts containing a general allegation of title, with further averments of distinct trespasses, some of which related only to a use which might have been found to be in excess of the plaintiff’s grant, while others rested upon a denial of her right to use the way for any purpose. While all the allegations were put in issue by the answer, the judgment upon the merits was general, and may have been rendered upon either or all of the issues which could have been tried within the pleadings. But, if conclusive between the parties or their privies in a subsequent action for the same cause, this rule is inapplicable where the second action is for a different cause, unless it appears that the issue subsequently raised had been actually tried and determined in the first action. Although the defendant was estopped to deny his grant, yet, as the extent of the easement was not defined in the deed, oral evidence was competent to show the measure of this right as prescribed at the date of the conveyance. Tobey v. Taunton, ubi supra. If it were found, that the grantee either had exceeded her rights, or was without title because her grantor was not seised, the plaintiff in the first action was entitled to judgment. To ascertain what questions had been decided, the parties were accordingly permitted to introduce extrinsic evidence from which it could have been found that the decision rested upon the sole ground that Bergeron had the better title. But even then, it finally remained for the jury under suitable instructions to decide upon all the testimony,
Because of this error there must be a new trial, and we do not deem it necessary to consider other questions raised by the exceptions.
Exceptions sustained.