
    No. 23,994.
    Isam Alfred, Appellee, v. C. A. Savage and Frank Hudson, Appellants.
    
    SYLLABUS BY THE COURT. .
    1. Ejectmeht — Title to Beal Estate — Former Judgment — Matters Bes Judi-cata. A judgment in an action in ejectment is binding and conclusive between the parties thereto in a subsequent action for the recovery of possession of the real property, prosecuted by the unsuccessful party, unless that party can show a subsequently acquired title which avoids the judgment.
    2. Same. A contract with the administrator of the estate of a deceased person for the purchase of real property owned by the deceased person at the time of his death does not give title sufficient to avoid such a judgment as is described in the first paragraph of this syllabus where no administrator’s deed has been delivered, although the contract with the administrator was made after the judgment Was rendered.
    Appeal from Wyandotte district court, division No. 1; Edward L. Fischer, judge.
    Opinion filed December 9, 1922.
    Reversed.
    
      James P. Getty, and Frank L. Bates, both of Kansas City, for the appellants.
    
      A. J. Herrod, H. S. Boberts, J. O. Emerson, and D. J. Smith, all of Kansas City, for the appellee.
   The opinion of the court was delivered by

MARSHAL, J.:

In an action in ejectment, the plaintiff recovered judgment against the defendants, who appeal.

Melissa MÍartin, at the time of her death, which occurred in 1912, held the legal title to the property iü controversy. Afterward, a claim of the plaintiff for $800 was allowed against her estate. There was no .personal property out of which the claim could be paid. In 1918, an order was made by the probate court directing the sale of the property. The administrator contracted with the plaintiff to-sell to him the property for $600. That sale was confirmed by the probate court; but at the time of the trial of the present action, no deed for the property had been delivered by the administrator to the plaintiff. In September, 1913, in an action in ejectment for the recovery of the property in controversy, in which the defendant C. A. Savage was plaintiff and the plaintiff Isam Alfred was defendant, judgment was rendered in favor of C. A. Savage, finding that he was the owner of and entitled to the possession of the property and that Isam Alfred wrongfully withheld the possession from C. A. Savage, and ordered that C. A. Savage recover posses-sion of the property from Isam Alfred. The petition, the trial statements, and the journal entry of judgment in that.action were introduced in evidence.

1. The judgment in favor of Savage against Alfred, rendered in 1913, adjudicated the title to the property at that time, and is conclusive between Alfred and Savage unless Alfred has shown a subsequently acquired title which avoids that judgment. If the title of Savage was superior to that of Melissa Martin at the time of her death, the former judgment in favor of Savage established the title in him, and that title cannot be defeated by a deed executed by the administrator of the estate of Melissa Martin, deceased.

2. Did the contract of Isam Alfred with the administrator give to Alfred such a title as enables him to recover possession of the property from C. A. Savage? The right of Alfred to a deed from the administrator depended on Alfred’s performance of the contract with the administrator. There is nothing to show that Alfred performed his part of the contract. Why the administrator’s deed was not delivered to Alfred does not appear, although it is intimated that he did not pay the purchase price therefor. That intimation seems to be correct because Alfred argues that he had the right to apply his claim against the estate on the purchase price after paying the costs of administration. His was the only claim that had been allowed against the estate of Melissa Martin, but neither Alfred nor the probate court had the right to assume that no other claims against the estate would be presented. He did not have the right to apply any part of his claim on the purchase price. He should have paid his money and received the deed. The money should have been paid out under the order of the probate court. Alfred did not get a deed, and he did not prove such a title in him as-justified a judgment in his favor, against the former adjudication of title in favor of C. A. Savage.

On the oral argument, it was stated by counsel that a deed from the administrator to the plaintiff had been filed with the clerk of this, court and that an affidavit had also been filed. They cannot be considered on this appeal, because the case comes here on the record made in the trial court and must be decided on that record.

The judgment is reversed, and a new trial is directed.  