
    Potter et al., Appellants, v. Adams et al.
    
    Division One,
    April 20, 1898.
    Ejectment: former judgment: res adjudioata: bill of peace. On a former appeal by defendants herein the judgment was reversed without remanding the cause. This is another suit in ejectment between the same parties for the same land, based upon the same state of facts. Held, that the judgment on appeal by respondents in the other suit will be affirmed, and this appeal will be determined in the same way as the former one, for the reasons therein given; and that defendants are entitled to their bill of peace.
    
      Appeal from, Benton Circuit Court. — Hon. W. W. Wood, Judge.
    Appiemed.
    
      Bolding é Forman and Ross & Washburn for appellants.
    A suit involving the title to the lands in controversy, in which the parties were the same as in the case at bar, was determined by this court and reported in 125 Mo. 118. In that case the attention of the court was not called to certain material points now here presented, to wit: First, the admission of the deed in trust in evidence; second, the alleged possession by Eveline E. Bane of the land without permission or authority from John H. Potter, the trustee; third, 
      adverse possession as between husband and wife while the marital and family relation existed; fourth, estoppel of a grantee or those claiming under him from showing the destruction or cancellation of a deed when the conveyance is not a valid one.
    
      W. S. Shirk for respondents.
    The bill of peace was properly sustained and the decree entered correct. Prim v. Boboteau, 56 Mo. 407; Spencer v. O’Niel, 100 Mo. 49.
   Robinson, J.

This is an action of ejectment to recover the possession of one hundred acres of land in Morgan county, that was taken for trial to Benton county in change of venue, and there disposed of at the October term, 1895. A suit involving the title to the same lands in controversy here, and between the same parties, was determined by this court at its October term, 1894, and is reported in 125 Mo. 118. The plaintiffs and appellants now claim that the testimony offered at the last trial of this cause was different from that given at the former trial and that new points have been raised in this ease not passed upon by this court in its opinion delivered in the former case. We have read the testimony as preserved in the abstract of the record in the former, as in that of the present case, as well as the statement of facts as made by this court in the former case, and in all the essential features the facts are practically the same, differing only in the order of their presentation, except on the present case some additional testimony was heard of a purely cumulative nature, as to acts and declarations of Thomas Bane as to his title to the land, and the testimony offered on part of defendants to sustain the second count of their present answer praying for a bill of peace, and that plaintiffs be restrained and enjoined from prosecuting any further suits against them for said land until plaintiffs are able to show some new and different title thereto or right to the possession of same, this being the fourth action which the plaintiff and their privies have brought against defendants for same. Upon the finding of the court on the issues thus raised by the second count of defendant’s answer, no exception is now made if the judgment in favor of the defendants on the merits on the issue, of their first count is sustained.

For all practical purposes, it may then be said, we have the same ease between the same parties upon the same state of facts as was passed upon and determined in the case of Potter v. Adams, 125 Mo. 118, and for the reason assigned therein and upon the authority of that case the judgment of the circuit court in the present case will be affirmed.

Bbaoe, P. J., and Mabshall, J., concur; Williams, J., not sitting.  