34 So. 2d 366 | Miss. | 1948
Appellant brought suit in ejectment demanding possession under a deed from Barham dated October 29, 1931. The declaration alleged that the "right of possession of the same accrued on the 2nd day of April 1942."
Plea of res judicata was interposed setting up the judgment in Williams v. Patterson,
The former case was decided upon general demurrer which was sustained for failure of complainant to show title in himself. It was therefore a decision upon the merits as to complainant's want of title.
We proceed therefore to examine whether the former judgment is res judicata. In the prior action, complainant *869
attacked the title of Barham as a cloud upon his title. The deed from Barham was of record when the confirmation suit was instituted. Appellant here grounds his right of possession not upon a title subsequently acquired, nor upon a lesser right than ownership, but upon a fee simple title existing prior to the filing of the bill to confirm title. Appellant may not be allowed to try his case piecemeal, or to set up grounds available upon the former hearing. As stated in Manly v. Kidd,
It was said in Chiles v. Champenois,
We take notice of Scottish-American Mortgage Company v. Bunckley,
The principle is firmly established that where an issue is positively excluded from the former decision, the fact that it was by the pleadings actually included or necessarily inherent does not incorporate it into the adjudication. 50 C.J.S., Judgments, Sec. 659; 30 Am. Jur., Judgments, Secs. 181, 182.
The inapplicability of Lion Oil Refining Co. v. Crystal Oil Company,
Nor is Hart v. Picard,
Code 1942, Section 1326, provides that in suits to try title the court shall have jurisdiction to "decree possession and to displace possession, to decree rents and compensation, etc. . . . although the legal remedy may not have been exhausted or the legal title established by a *871 suit at law." In the former suit, appellant prayed for adjudication of title with damages. He stated that he "has the right of possession" thereto, and that his right accrued in 1942. Each of said allegations, save the confirmation of title, are set out in the ejectment suit. The right of possession is based solely upon an asserted legal title existing at the time the former case was heard. All relief here ought is based upon a claim of legal title.
We are of the opinion that the trial court was correct in sustaining the plea of res judicata.
Affirmed.