
    *The Lessee of John Lore and others v. John Truman.
    1. "Where a judgment or decree is relied on by way of evidence, as conclusive per se, between the parties in a subsequent suit, it must appear by the record of the former suit that the particular controversy sought to be precluded was therein necessarily tried and determined.
    2. Where, in an action at law, a former decree in chancery, dismissing a bill generally, is relied on as an estoppel per se as to the matters set up in said bill, and it appears, from the record, that the said bill in chancery may well have been dismissed for want of jurisdiction, such decree of general dismissal does not per se estop the plaintiff therein from proving, in the suit at law, the matter relied on in the bill as a ground for equitable relief.
    Error to the district court of Hamilton county.
    This is an action of ejectment commenced in April, 1849, in the Superior Court of Cincinnati, and certified from that court to the court of common pleas of Hamilton county, in which it was tried at its October term, 1852, and a verdict and judgment rendered therein in favor of the plaintiff.
    The cause was thereupon appealed by the defendant to the district court, where it was finally tried in May, 1856, and a verdict and judgment rendered in favor of the defendant.
    It appears from the bill of exceptions, taken at the trial in the district court, that the plaintiff'offered in evidence a deed, dated February 13, 1796, from John Cloves Symmes, the patentee, to Henry Lore, deceased, duly executed and recorded, for a tract of one hundred and sixty acres of land, of which the premises in controversy arc a part.
    It was also agreed that all parties to the suit claim under said Henry Lore, and that he died intestate, October 16,1842, while living upon a part of said tract, leaving seven children, of whom the lessors of the plaintiff are four, his heirs at law. Here the plaintiff rested.
    ^Whereupon the defendant offered in evidence: 1. A deed in fee simple from said Henry Lore to Zacharias Lore, a son by a second marriage, for about forty-eight acres, part of said tract of one hundred and sixty acres, dated August 18, 1842, for the consideration, as expressed therein, of fifty dollars; 2. The last will of Zacharias Lore, duly proved and recorded, dated June 22, 1847, devising all his real and personal estate, wherever situate, to his mother, Hetty Lore, and the defendant, John Truman; 3. A deed from said Hetty Lore to the defendant, duly executed, and dated November 20, 1848, of all her estate and interest in the land conveyed as above, by Henry Lore to Zacharias Lore; 4. A transcript of the papers, journal entries, and final decree in a suit in chancery, instituted in the Superior Court of Cincinnati, by the lessors of the plaintiff against the defendant, in December, 1848, from which it appears that the complainants therein sought to vacate and annul the said deed from Henry Lore to Zacharias Lore.
    The bill charges, in substance, that the said Zacharias, at the time the deed purports to have been executed, was a minor not more than fifteen years of age, and living with the said Henry. That he had no property or means, and that in fact no money was ever paid for said conveyance. That the said Henry was at the time ninety years old, and was then, and for a long time had been, by reason of extreme ago and infirmity, wholly incapable of making any valid contract. That he never executed said deed, and never intended to execute such a deed. That he never wrote his name, or protended to do so, though the pretended deed purports to have been signed by him. That if the pretended deed was ever executed in his presence, it was done by the design and management of his wife (the mother of Zacharias), and without the knowledge or consent of the said Henry. That the said Zacharias • died in June, 1847, a few days before he arrived at the ago of twenty-one years; and that the will, if executed at all, *must have been made before lie became of lawful age to make a will. The bill also charges that the defendant had knowledge at the time the said pretended deed was made, of all the facts set forth in the bill, in regard to the execution and procurement thereof, and prays that on the final hearing thereof, the said deed from Henry Lore to Zacharias Lore may be annulled and held for naught, as well as for general relief.
    To this bill the defendant therein, John Truman, filed a general demurrer; and at the January term, 1850, of said Superior Court, the cause being heard upon demurrer to said bill, it was adjudged by said court that the demurrer was well taken; and the bill was thereupon dismissed at the costs of the complainants, and a record was also waived by consent of parties.
    The bill of exceptions then states, that it was agreed by the parties, that the jilaintiff was entitled to recover, unless the title passed by said deed from Henry Lore to Zacharias Lore, and that if the title did so pass, the defendant was entitled to recover.
    And thereupon “ the jjlaintiff called Rebecca "West, and offered evidence tending to prove that said Henry Lore, at the time of his death, was eighty-nine years old; that at the time of the making of said deed of August 18, 1842, said Zacharias Lore was but fifteen years of age, and that no consideration was paid for said deed; that said Henry Lore never did execute said deed (Exhibit B) ; that said deed was jmoeured to be made by fraud, and without the knowledge or consent of the said Henry Lore; that the said Henry Lore could neither write nor read writing, and never wrote his name; that at the time of the date of said deed, and for a long time before, said Henry Lore was and had been, by reason of the greatdecay and imbecility of mind incidentto extreme old age, wholly incapable of making any valid contract or conveyance whatever.”
    “ To the introduction of which evidence, or any j^art thereof, *the defendant objected, and claimed that the said transcript of proceedings in chancery were an effectual bar to the introduction of such evidence in this cause ; and a majority of the court sustained the objection and r.uled out the testimony.” To which tho plaintiff; excepted.
    And no further evidence having been offered by either party, a majority of the court, the plaintiff excepting thereto, charged the jury that their verdict must be for the defendant. And a verdict having been rendered for the defendant, the plaintiff moved for a new trial; 1. For excluding the testimony offered by the plaintiff;
    
      2. Eor improperly charging the jury that their verdict must be for the defendant. This motion was overruled and exception taken, and a judgment rendered for the defendant.
    After the entry of said judgment, the plaintiff demanded another trial, and asked that notice of his demand should be entered upon the journal, and the judgment vacated, and the cause set for tidal at the next term of said court. This application was also refused by the court, and exception taken by the plaintiff.
    The present petition in error is now prosecuted to reverse tho judgment thus entered by the district court.
    
      J. BE. Jones and J. JB. Eaton, for plaintiff, argued:
    1. That the district court erred in holding that the transcript and journal entries of the chancery suit in the Superior Court per se estopped the plaintiff from attempting to invalidate the deed from Henry Lore, Sen., to Zacharias Lore, of August 18, 1842, by proving any of the facts which are alleged against it in the bill. Duchess of Kingston’s case, 11 State Trials, 291; Cowen & Hill’s Notes to Phillips, 845, note 594; Gardiner v. Buckbee, 3 Cowen, 120 ; Lawrence v. Hunt, 10 Wend. 80; Eastman v. Cooper et al., 15 Wend. 276; Wales v. Lyon, 2 Mich. (Gibbs,) 276; Pierpont et al. v. Barnard, 5 Barbour (S. C.), 354; Rogers v. *Libby, 35 Maine, 200; Brewster v. Striker, 2 Comst. 19; Leutz v. Wallace, 17 Penn. St. (5 Harris,) 412; Johnson v. White, 13 Smed. & Marsh. 584; Evens v. Birge, 11 Ga. 265; Hamer v. Brown, 16 Howard, 354; Van Rensselaer v. Kerney, 11 Howard,326; Buckingham v. Hanna, 2 Ohio St. 551-559.
    2. The district court erred in refusing to allow the plaintiff’s demand for another trial to be placed upon the journal, or to vacate the judgment. Code, secs. 502, 002.
    
      Ball & Ball, for defendant, argued that the judgment of the-distriet court should not be reversed.
    I. Because the verdict in the district court was for the defendant, and a new trial is seldom or never granted when the verdict in ejectment is in favor of the defendant, for it is easier for the plaintiff to bring a new suit. Glover’s Lessee v. Ruffin, 6 Ohio, 255; Runnington on Ejectment, 398 ; Sockman’s Lessee v. Sockman, 8 Ohio, 368.
    II. Because the district court did not err in sustaining the record of the proceedings in chancery in tho Superior Court, for it was the record of a final decree, in a cause between the same parties, upon the same subject-matter, and for the purpose of setting asid« the same deed.
    1. The record was a complete bar to the action, and could not be collaterally impeached; it imported absolute verity. Morgan’s Lessee v. Burnet, 18 Ohio, 547; Newman’s Lessee v. City of Cincinnati, Ib. 331; Blount v. Darrack, 4 Wash. C. C. 659; Thompson v. Tolmie, 2 Peters, 169; Glover’s Lessee v. Ruffin, 7 Ohio, 279; Ewing’s Lessee v. Higbee, 7 Ohio, 200; Adams’ Lessee v. Jeffries, 12 Ohio, 272; Jackson v. Robinson, 4 Wend. 440; Horner v. Lessee State Bank, 1 Carter, 130; Buchanan v. Lessee of Roy, 2 Ohio St. 251; Moore v. Robinson, 6 Ohio St. 302.
    2. The bill in chancery in the Superior Court, attacked the same deed of 18th August, 1842, and for the same treasons which the plaintiffs propose to prove by the testimony of Mrs. West, and therefore as to those grounds, the proposed testimony was incompetent, as those grounds had been passed upon by the decree, and whether that decree was right or wrong, it was res adjudicata and binding on the parties until reversed.
    The bill raised three questions: 1. That there was no money consideration for the deed; 2. That there was undue influence exercised in obtaining the deed ; 3. That by reason of imbecility of mind and extreme old age, Henry Lore was incompetent to make the deed.
    
      First, as to the absence of consideration : An heir can not contest the consideration of his ancestor’s deed. If made for the purpose of defrauding creditors,.the creditors, but not the heirs, may contest it.. But in this case, four of the heirs at law endeavor to do so. Miller v. Wilson, 15 Ohio, 108; Barton v. Morris, Ib. 408; Hamel v. Hamel, 19 Ohio, 1; Gale et ux. v. Coburn, 18 Pick. 397; Breckenridge v. Waters, 4 Lana, 621; Brewer v. Hardy, 22 Pick. 376; Swisher v. Swisher’s Adm’r, Wright, 755; Grout et ux. v. Townshend, 2 Hill, 554.
    
      Second, as to undue influence: Neither persuasion nor fair argument by a grantee or devisee, will avoid a deed or a will; nor will an earnest request by a mother to a father to provide for the son of their old age, avail against the legal rights of the boy. Such an influence, if exerted, is not undue, but due and proper. Clary’s Adm’r v. Clary, 2 Ired. 78; Blanchard v. Nestle, 3 Den. 43; Miller v. Miller, 3 S. & R. 267; Stewart v. Lispenard, 26 Wend. 256.
    
      
      Third, as to imbecility and extreme age: It requires but the lowest degree of intellect to enable a father to provide for his child, and to make a valid and reasonable deed of gift. The rule applies to deeds and wills alike. 1. As to deeds: Osterhout v. Shoemaker, 3 Den. 37, note; Odell v. Buck, 21 Wend. 142; Pelrie v. Shoemaker, 24 Ib. 85. 2. As to wills: Blanchard v. Nestle, 3 Den. 37; Jackson v. King, 4 Cowen, 207; Elliott’s Will, 2 J. J. Marsh. 341; Stewart v. *Lispenard, 26 Wend. 255. 3. Extreme old age and its consequent infirmities will not disqualify a man from making a deed of gift, or a will: Van Alst v. Hunter, 5 Johns. Ch. 158; Stevens v. Van Cleve. 4 Wash. C. C. 267; Whitemarsh v. Striker, 1 Green Ch. 8; Lowe v. Williamson, Ib. 82; Sloan v. Maxwell, 2 Ib. 563; Andress v. Weller, Ib. 605; Watson v. Watson, 2 B. Mon. 74; In re, Deed’s Will, Ib. 79; Kimball v. Easton, 8 N. H. 391.
    III. It is not necessary, nor will this court deem it a proper subject of inquiry in this case, to ascertain whether the decree of the Superior Court, sustaining the demurrer and dismissing the bill, be erroneous or not, for that decree can not be collaterally inquired into. If it be erroneous it is not void, and it will always continue in force until reversed in the manner pointed out by law. Story’s Eq. PL, secs. 506, 507, 610.
    1. It is the well-settled practice of courts of equity that defenses other than the mere want of equity, such as limitation, fraud, and the like, may be asserted by demurrer. Story’s Eq. PL, secs. 484, 503, 505, 751; Horendon v. Armsley, 2 Sch. & Lef. 638; Maxwell’s Adm’r v. Kennedy, 8 How. S. C. 210.
    2. When courts of chancery and common-law have concurrent jurisdiction, questions litigated and decided in one. court can not be re-examined ill another. Curtis v. Cisna’s Adm’r, 1 Ohio, 429; McCarty v. Burrows, 2 Ib. 20; Wood v. Archer, 2 Ib. 22; Reynolds v. Reynold’s Adm’r, 3 Ib. 268; Seley v. Parker, 4 Ib. 469; Green v. Dodge, 6 Ib. 80.
    3. The bill was neither dismissed “ without prejudice,” nor for want of prosecution, but on the hearing had upon the demurrer, and the decree is therefore a complete bar to any other suit between the same parties for the same cause of action, and has all the effect of a judgment at law. Story’s Eq. PL, sec. 793.
    IY. The district court did not err in overruling tne *testimony of Mrs. West, because its object was to impeach, collaterally, the record in chancery. Therefore, as there was no competent testimony to invalidate the deed of 18th August, 1842, it was the duty of the court, in carrying out the agreement of the parties, embodied in the bill of exceptions, to instruct the jury to find for the defendant. Wakeman v. Robinson, 1 Bingham, 213; Morris v. Brickley, 1 Har. & Gill. 107.
    Y. The plaintiffs in error had no right to demand, as a matter of course, a second trial in' the district court:
    1. Because this suit was brought before the code took effect, and the practice is to be governed by the laws in force when the suit was instituted-. Code, see. 602; Singer v. Belt’s Heirs, 8 Ohio St. 291.
    2. Because the right to demand “ another trial by notice on the journal,” in actions for the recovery of real property, applies only to the court in which the suit is brought, and not to the appellate court. Code, see. 562.
   Peck, J.

The only errors relied on in the argument for the reversal of this judgment are:

1. The holding of the district court that the transcript and journal entries of the suit in chancery in the Superior Court, per se estopped the plaintiff from proving the non-execution of the deed of August 18, 1842, by the said Henry Lore, or that its execution had been procured by fraud.

2. The overruling the demand of the plaintiff for a second trial, and refusing to permit an entry of such demand upon the journal of the district court.

The other error assigned in the motion for a new trial—the charge of the court to the jury that “ they must find a verdict for the defendant ”—seems to have been abandoned, and very properly so. The parties had agreed that if the deed from Hery Lore passed the title, the defendant was entitled to recover ; and if the court was right in the assumption that the said transcript, journal entries, and decree, per se and as a matter of law, absolutely estopped *the plaintiff from invalidating that instrument by proof of its non-execution, or its fraudulent procuration, there was no question of fact to be passed upon by the jury. The admission in the agreed case and the estoppel conjoined, authorized and required a verdict for the defendant, and if the estoppel obtained, there was no impropriety, much less any unwarrantable assumption of the peculiar province of the jury, in the charge thus given.

"What effect had the transcript from the Superior Court upon the proof offered by the plaintiff?

The bill founded its prayer for relief mainly upon the allegations that Henry Lore never in fact executed the deed, or, if executed, that its execution was procured by the fraudulent practices of the mother of Zacharias. And the testimony offered in the district court tended to establish those facts, and were material to the suit pending therein, if it was competent for the plaintiff to prove them. The bill was demurred to, assigning for cause, merely, that the complainants had not made such a case as entitled them, in a court of equity, to any discovery or relief against the defendant; and the decree of the court thereon was, simply, that the complainants are not entitled to the relief sought, and that the bill bo dismissed at the costs of the complainants.

Hid the district court err, in holding that this decree of the superior court estopped the plaintiff from exhibiting the proof, offered by him, as to the non-execution and fraudulent procurement of the deed ?

There can be no doubt at the present day but that the rule established in the Duchess of Kingston’s case, in 11 State Trials, 291, cited with approbation by Chief Justice Gibson, in Hibbsham v. Dulleham, 4 Watts, 191, and by Lewis, J., in Lents v. Wallace, 17 Penn. 412, is the true one and well expressed: “The judgment of a a court of concurrent jurisdiction, directly upon the point, is, as a plea in bar or as evidence, conclusive between the same parties, on the same matter, directly in question in another court. *But neither the judgment of a court of concurrent or exclusive jurisdiction is evidence of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment.”

So it is also said in 3 Phillipps’ Evidence, 845: “ That where a judgment (or decree) is relied on by way of evidence as something conclusive per se, between the parties, it must appear by the record of the prior suit, that the particular controversy so sought to be precluded was there necessarily tried and determined. In other words, if, in such cases, the former record clearly shows that the judgment to which this effect is ascribed could not have passed without deciding a particular matter, it will be considered as having settled that matter for all future actions; but otherwise not.” See also Rogers v. Libbey, 35 Maine, 200; Evans v. Beck, 11 Ga. 265.

To apply this rule to the case at bar: Does it clearly appear from the transcript, that the execution of the deed or its fraudulent procurement was necessarily tried and determined; or could that decision have been made without passing at all upon these questions? If their truth and sufficiency were necessarily tried and determined in that suit; or if the decree could not have been pronounced without such determination, then the decree, however erroneous, is, until vacated or reversed, conclusive between the parties, in all other and future actions, as to the matters so involved and determined. The suit instituted in the Superior Court was a suit in chancery, and its object was to vacate and annul the deed of August 18, 1842, principally because it had never been executed by Henry- Loro, and because its execution had been procured by fraud. The demurrer denied that the bill made a proper case for relief in equity, and the court so found and determined. Did that ruling of the court necessarily involve a consideration of the truth or falsity of the averments as to the non-execution of the deed, or might the court have hold that the bill did not make a case for relief in a court *of equity, without passing upon the truth or falsity or the sufficiency or insufficiency of those averments?

“The chancellor has jurisdiction in those cases where a plain, adequate, and complete remedy can. not be had at law.” Lane, J., in Crane et al. v. Green’s Adm’r, 6 Ohio, 429, 430.

And in Biggerstaff et al. v. Loveland et al., 8 Ohio, 44, 45, Chief Justice Hitchcock, in speaking of a chancery court and its jurisdiction, says : “ Its jurisdiction extends only to cases where there is not complete and adequate remedy at law, and not to cases where the legal remedy is plain, adequate, specific, and complete.” •--

If, then, it appears, by the bill, that the complainants had a plain and adequate remedy at law, it did not make a caso for relief in a court of equity, and the bill was, for that cause, very properly dismissed, without determining the truth or falsity of the averments as to the execution of the deed. The bill shows, if its averments are true, that the complainants had the legal title to the lands covered by the pretended deed, and might, therefore, institute proceedings at law to recover the possession, to which proceeding such a deed would present no effective bar. Had the bill sot forth that the complainants were in possession, and therefore incapacitated to sue at law, or that they required a discovery from the defendant, the case would have been very different. It would have shown that the remedy at law was not adequate and completo, and, at the same time, have disclosed cause for equitable interference. The-demurrer admits that the deed was void at law and in equity, and it is therefore apparent that the bill should have been dismissed upon the ground that it did not make a ease for the interference of a court of equity to annul it. To hold that the court, in their decree, notwithstanding the admissions of the demurrer, found that the deed was of binding force and obligation, in favor of one who was aware, at its inception, of the falsity and fraud, is a proposition too monstrous to be entertained for a moment. Equally absurd *would it be to hold, where the language employed does not require it, that a court, having the jurisdiction and authority to act, would refrain from annulling a deed, which the party claiming under it admits to have been conceived in falsity and fraud, and that he was aware of it at the time the deed was executed. It does not, in our judgment therefore clearly appear, from the transcript, that the execution or the non-execution of the deed of Henry Lore was necessarily tried and determined by the Superior Court, nor but that that decree could well have been made, without passing upon these questions. The exhibition of that transcript, then, did not, per se, estop the plaintiff from offering evidence tending to prove that the deed was never, in fact, executed, or that its execution was procured by fraud. Thus far, at least, the evidence was clearly competent, and ought to have been admitted by the district court. The Superior Court, the non-execution of the deed and non-age of Zacharias, at his decease, being admitted, ought to have dismissed the deed without prejudice; but their omission to do so can not have the effect of es-topping the lessors of the plaintiff from proving, if they can, the truth of those averments in the petition. To hold them estopped, per se, by such a record, would be extending, without reason, the doctrine of estoppel further than it has over yet been carried, arid make it the instrument of manifest injustice.

In regard to the last assignment of error—“ that the court refused to permit the entry upon the journal of the notice of a demand for another trial by the plaintiff, and also to vacate the judgment and set the action for trial at the next term ”—we have to observe that, since this cause was tried in the court below, the points sought to be raised by the assignment have all been decided adversely to the plaintiff, in the case of Singer v. Heirs of Belt, 8 Ohio St. 291. It is only necessary to say that, upon reflection, we see no cause to alter the ruling there made.

The judgment of tbe district .court for tbe error first *noticed is hereby reversed, and the cause remanded for further proceedings.

Brinkerhoee, C. J., and Scott, Sutliee, and Gholson, JJ., concurred.  