
    Lewis Parker and Harris Parker vs. John Leggett.
    
      Trespass to try title — Evidence—Estoppel.
    Where, in an action of trespass quare clausum fregit, the defendant pleads liberum tenementum, setting forth his claim by metes and bounds, and there is a verdict upon that plea in his favor, the record is conclusive evidence of his1 title in a subsequent action of trespass to try title brought by him against the plaintiff for the land included in the plea.
    BEFORE WARDLAW, J., MARLBOROUGH, SPRING TERM, 1860.
    This was an action of trespass to try title, to recover a tract of one hundred and fifty-seven acres of land granted in 1799 to Moses Parker, the father of the plaintiffs.
    The defendant contended that this tract was included in a grant to one Eobinson, made in 1788, the title to which was in him.
    The plaintiffs gave in evidence the record in an action of trespass guareclausum fregit brought in 1852 by John Leggett, the now defendant, against Lewis Parker and Harris Parker, the now plaintiffs, and their brother, William Parker, who was now dead. In that action the pleas were, the general issue, and liberum tenementum, in which the tract now in dispute was claimed by metes and bounds, and at the trial acts, which would amount to trespasses if the title were in the then plaintiff, it was admitted by the then defendants had been committed by them at two small places on the tract now in dispute, which places were marked on the plat used at the trial of that action. The verdict in that action was, “We find for the defendants,” and judgment was entered up upon it. The now plaintiffs contended that the record of that action was conclusive of their title to the whole tract of one hundred and fifty-seven acres, but his Honor held that it was conclusive only as to the two small parcels upon which the supposed trespasses had been committed; and as no trespasses by the now defendant had been committed upon those parcels the jury found for the defendant.
    The plaintiffs appealed, and now moved this Court for a new trial, on the ground:
    Because his Honor erred in directing the jury that the record in the case of John Leggett against these plaintiffs, together with another brother, since deceased, decided nothing more than that the title to the spots of land, upon which the trespasses were admitted by .the defendants to have been committed; was in the said defendants; whereas it is submitted that the said record is conclusive of the questions in issue in this case, it appearing from the evidence that the same questions were put in issue in both cases, and that the trespasses in the former case were admitted.
    
      Mclver, Johnson, for appellants.
    It appearing by the record in the former case, and the parol evidence offered, that the same questions of title and location were in issue, and the finding of the jury was for the plaintiffs, the trespasses having been admitted, the defendant is estopped from denying the plaintiffs’ title. Henderson vs. Kenner, 1 Rich. 474; Shutilesworth vs. Hughey, 9 Rich. 387; Jones vs. Muldrow, Cheves, 254; Parker vs. Leggett, 12 Rich. 198.
    
      David, contra.
   The opinion of the Court was delivered by

Johnstone, J.

The opinion was expressed at a former hearing of this case in this Court, that the verdict rendered in the action brought against the present plaintiffs by the present defendant, was not only competent evidence in this case, but decisive of it.

In that case tbe Parkers put in issue not only tbe trespasses complained of, but pleaded liberum tenementum, by metes and bounds, and had a general verdict, after a full consideration of evidence of location. It appears to us tbat this is equivalent to a finding of tbe title to tbe whole land covered by their plea of liberum tenementum.

It is therefore ordered tbat a new trial be bad in tbe case.

O’Neall, C. J., concurred.

Wardlaw, J., absent at tbe bearing.

Motion granted.  