
    KAMMANN v. BARTON et al.
    In the absence of proof that a particular issue was actually determined in arriving at a former judgment, it is conclusive only as to those facts without the existence and’ proof of which it could not have ■been rendered.
    Recitals in a judgment are not conclusive nor evidence of adjudication.
    Where, in an action against a mortgagee to quiet title, plaintiff in his reply set up that the limitations had run against the mortgage, but there was no evidence that the statute was considered, a judgment that plaintiff’s title was subject to defendant’s mortgage lien was not res adjudicata on the question of the statute in a subsequent action by the mortgagee to foreclose the mortgage.
    The burden is on one relying on the tolling of the statute of limitations by the absence of the adverse party from the state to 'show the facts.
    A mortgage not under seal is harred in 10 years unless the .statute is in some manner tolled.
    Where, in an action by the grantee of a mortgagor against the mortgagee to quiet title, the mortgagor was not .made a party, a judgment that the mortgage was a valid lien was not -res adjudicata as to the mortgagor in a subsequent .action to foreclose the mortgage, since he did not stand in privity to ,his grantee;
    (Opinion filed, June 26, 1909.)
    Appeal from Circuit Court, Spink County. Hon. CharuJS S-Whiting, Judge.
    Action by Frederick W. Kammann against Lot Lee Barton and another. Judgment for plaintiff, 'and defendants appeal.
    Reversed, and new trial ordered.
    
      W. F. Corrigan and Taubman, Williamson & Herreid, for ap-©ellants.
    In order that a judgment shall have the effect claimed, it is not enough that the party produce a record showing a judicial determination of the same question litigated in his favor, but it must .also appear that it was rendered upon the merits upon a material point, and substantially up,on the same facts presented in the subsequent case. Thorn v. DeBreteuil et al., 83 |N. Y. Sup. 865; Shaw v. Broadbenlt, 129 N. Y. 114, 29 N. E. 238. The question of the ten years statue of limitation was not in issue and was not decided in the former action.
    
      D. W. Poindexter, for respondent.
    
      All questions, as to the validity of his mortgage, the amount due thereon, and the superiority of the lien over the title of appellant, were adjudicated in the case of Hunter v. Kammann, to quiet title, ,and that adjudication was equally binding upon the other defendant herein, and it was the duty of the plaintiff to attack it on all the grounds he had, and failing to do so on any ground he had, he and his present co-defendant being privy in in • terest, are estopped in this action from setting up the same or any other defenses to said mortgage which then existed. Howard v. The City of Huron, 5 S. D. 539; 6 S. D. 180; Minnesota Thresher Co. v. Schaak, 10 S. D. 511; Pitts v. Oliver, 13 S. D. 561, Stevens v. Osgqod, 18 S. D. 247.
   McCOY, J.

This-is an acfion commenced by plaintiff, F. W. Kammann, against the defendants, Lott Lee Barton and H. F. Hunter, to foreclose a real estate mortgage. The complaint is as follows: “Plaintiff alleges: That on June 13, 1889, defendant Lot Lee Barton was indebted to plaintiff in the sum of $237, evidenced by two promissory notes dated March 6, 1889, one for $228, one for $9, both due September 6, 1889, bearing interest at 12 per cent, per annum after maturity, and on June 13, 1889, defendant Barton, to secure said notes, made his mortgage deed, whereby he sold and conveyed to plaintiff the S. W. J4 of sec. 32-120-63, tobe void upon the payment of said notes. That said mortgage contained a power of sale in the usual form, and was recorded. That the plaintiff is still the owner of said mortgage, and the same is due and unpaid. That plaintiff commenced foreclosure by advertisement, but has been compelled to foreclose by action. That in August, 1905, defendant Hunter commenced an action in this court against this plaintiff to quiet title in himself in said premises. That this plaintiff, answering, alleged the making of said mortgage, etc. Thai-said action was tried to the court on January 10, 1906. Said court found, adjudged, and decreed .that defendant in that action (the plaintiff in this action) had a valid lien on said land by virtue of said mortgage to the amount of $701.88 as more fully appears by the record and papers in said action. Wherefore plaintiff prays judgment against said defendant (1) for $701.88, and interest on said sum from January 10, 1906, and $7 damages sustained by reason of suing out tire restraining order; (2) the usual' decree for the sale of,said premises,” etc., ,The defendants,mad.e joint,answer .by general denial,,except as to all matters specifically admitted, .and alleged that said, notes and .mortgage described in the complaint were never delivered to, plaintiff; that .said notes and mortgage were executed by the defendant Barton -and delivered to the, Bank of Ashton, in escrow, to be delivered to plaintiff when plaintiff delivered to Barton the sums of money represented by said notes; and that the said sums of money represented by .said no.tes, nor ■any part thereof, were ever delivered, to Barton, or to any other person for him, and that said notes and mortgage were wholly without consideration; and defendants also pleaded the statute of limitations, both the six and ten year .statutes.

The only evidence offered by plaintiff in this case in proof of the allegations of the complaint was the mortgage and the judgment roll, consisting of summons, complaint, answer, reply, findings, and judgmeiijt in the former acti.on of H. F, Hunter, plaintiff, y. F. W. Kammann defendant. From this judgment roll it appears that plaintiff Hunter brought suit against the .defendant, Kammann, to -quiet title to S. W. Jd 32-120-63, plaintiff alleging ownership and ■ possession in. himself, and that defendant, Kammann, claimed to have some interest in or incumbrance upon said real estate adverse .to plaintiff. In that action defendant answered, alleging that on June 13, 1889, one Lot Lee Barton was the owner of said premises and being indebted to defendant in the sum of $237 and interest due September 6, 1889, to secure the payment thereof, executed and delivered to defendant a real estate mortgage upon said premises containing a power of sale, and to this answer the plaintiff in that action replied by a general denial and also by setting up the statute of limitations against the notes and mortgagee, and also alleged that said notes were give without consideration, and that said notes were not executed and delivered to defendant, Kammann. On the trial of the former action the court found: “That the plaintiff Hunter was the owner of said land, subject, however, to a mortgage lien thereon in favor of defendant, Kammann; ..that Hunter acquired title by warranty deed from Barton August 13, 1898, and that Barton acquired title from the United States; that on June 13, 1889, Barton executed a mortgage to defendant Kammann, to secure $237, evidenced by two notes described in the' answer, and that said mortgage was on June 14, 1889V duly' filed for' record and thief eafter 'duly recorded; that defendant is still the owner and holder of said notes and mortgage, and that no part of said debt has ever been paid, and that defendant has á valid and subsisting lien on said lands superior and paramount’ to 'the title of plaintiff t,o the amount of $701.88,” and thereafter the court rendered judgment “that plaintiff Hunter take nothing by said action; that the mortgage‘of defendant is superior and paramount to the title of plaintiff in and to said land in the ,sum of $701.88; and that on the payment of said amount to defendant title to'said land be quieted in him.” In the cáse at bar the court found “that on June 13, 1889, the'defendant Lpt Lee Barton executed and delivered to plaintiff his mortgage On the S. W. % of section 32 to secure the payment of $237, with interest, due September 6, 1889’; that said mortgage contained a power of sale; that said mortgage was duly filed for record; that in August, 1903, defendant Hunter, as plaintiff therein, commenced an action, in this court against this plaintiff as defendant therein to quiet title in Hunter to said land as the immediate grantee of defendant Barton under a warranty deed of August, 1898; that this plaintiff as defendant -in that action answered and pleaded the making and delivery of said notes and mortgage; and that the title of Hunter was subject to the said mortgage' of the said defendant, and to which answer the said Hunter replied, denying the allegations of said answer, and alleging the statute of limitations against said notes and mortgage, and alleging that said notes and mortgage were never delivered to the defendant, Kammann;” that on the xoth day of January, 1906, the said action of Hunter v. Kammann was tried and the court heard the proofs and considered the same, and, the records and papers in the case and arguments of counsel and said cause having been submitted, the court found “that plaintiff Hunter was the owner of the land subject to the said mprtgage of defendant; that Hunter'derived title from Barton in 1898, and that prior thereto, in'1889, Barton was indebted to defendant in the sum of $237, and made said mortgage to secure the payment' thereof, and that said mortgage was duly filed for record, and that defendant is still the owner of said notes and mortgage, and-that there was then due thereon $701.88”; that on said findings the court in that action rendered judgment that “defendant' Kammann, had a valid subsisting lien on said land to the amount of $701.88 superior to the title of plaintiff.” In this action the court further found that all the issues raised by the pleadings in the case of Hunter v. Kammann touching the making and delivery of said notes and mortgage and the question of the bar of the statute of limitations were tried and determined and adjudicated in said action in favor of defendant, and which judgment has never been appealed from, modified or reversed; that Barton has made no payments on said mortgage debt, and upon these findings the court in the case at bar rendered judgment “that the plaintiff, Kammann, recover of the defendant Barton the sum of $752.37 and costs and expenses, and that said land be sold at foreclosure sale to satisfy said judgment or so much thereof as the proceeds of such sale would satisfy, and that the purchaser of such sale, in case of failure of redempaion, be given a deed, and that defendants and all persons claiming under them be forever barred and foreclosed of all title to said land.”

The defendants, the appellants in this action, now contend that there was no sufficient evidence to sustain the said findings and judgment; that there is no evidence to show, the delivering of the promissory notes and mortgage on which the judgment is based; that there is no evidence to support the finding that “all the issues in the former case of Hunter v. Kammann touching the making and delivery of said notes and mortgage '.and the question of the bar of the statute of limitations, were tried, determined, and adjudicated in said action.” In this contention we are of the opinion that appellants are correct, and especially as to the question of the statute of limitations. There is absolutely no evidence as to what was litigated or adjudicated in the former action other than the natural inference that arises from the fact of a judgment in favor of the defendant, but an inference of this character must arise as a necessity in order to substantiate the judgment, and, while the court must have found as a matter of necessity that the notes and mortgage were executed and delivered to defendant Kam-tnann in that action in order that he might recover in any event, still that inference would not necessarily prevail as to the statute of limitations. The plaintiff in the former action might have offered no evidence at all on the issue of the statute of limitations, or might have abandoned that issue, and the. defendant still have •been entitled to the same judgment that was rendered. It was not necessarily essential that the question of the statute of limitations be litigated or adjudicated in order that defendant recover. In the absence of proof that a particular issue was actually tried and determined in arriving at a fortner judgment, it is conclusive by way of estoppel only as to those facts without the existence and proof of which it could not have been rendered; in other words, it is conclusive evidence of whatever it was necessary for the court to have found in order to warrant the decision in the former action, and no further. 23 Cyc. 1297, 1306, 1308-1, 309, and cases there cited; Mosteller v. Holborn, 21 S. D. 547, 114 N. W. 693; Selbie v. Graham, 18 S. D. 365, 100 N. W. 755. Recitals' in the judgment are not conclusive, and are not evidence of adjudication. 23 Cyc. 1292. There is no evidence or inference that the statute of-limitations was considered or determined in the former action. It is not enough even that it appears that the issue presented the later suit wa's- presented and ought to have been litigated in the former, but it must appear further that it was litigated and decided, as well as involved. It must appear that the issue was supported or attacked by the evidence and made the subject of the trial and pressed upon the consideration of the court. Selbie v. Graham, 18 S. D. 365, 100 N. W. 755; McPherson v. Swift, 22 S. D. 165, 116 N. W. 76; 23 Cyc. 1311. The case of Teigen v. Drake, 13 N. D. 502, 101 N. W. 893, is a very similar case to the one at bar, in which it i.s held “that the judgment in the action to quiet title is not available as res adjudicata in the trial of the foreclosure action. The former judgment was entered in JuTy, 1903, and this action was commenced September 12, 1903. Por aught we know, the time limited by the statute may not have expired until after the entry of judgment. The record furnishes no information on that point. A former judgment is not conclusive against defendants unless it is made to appear that all the conditions essential to -this defense were the same in the former action as they are in the subsequent one.” The same situation of affairs exists in the case at bar.' On the face of the evidence it would prima facie seem that the statute of limitations had run against the'notes and mortgage. If there was any tolling of the statute by the absesnce of the defendants from the state, the burden was on the plaintiff to show the facts. Dielmann v. Bank, 8 S. D. 263, 66 N. W. 311; Searls v. Knapp, 5 S. D. 325, 58 N. W. 807, 49 Am. St. Rep. 873. The mortgage in question appears from the record to be an instrument not under seal and would be barred in 10 years, unless the statute was in some manner tolled. Bruce v. Wanzer, 20 S. D. 277, 105 N. W. 282. 'There is no evidence in this case sufficient to show any tolling of the statute of limitations.

Again, in this' case, the plaintiff by his complaint demanded personal judgment against defendant Barton, and a personal judgment has been rendered against him in this action for the amount of the notes and interest and costs. Barton was not a party to the former action, and the judgment in that action is not res adjudi-cata as to him.' Barton does not stand in privity to Hunter. ITe does not claim anything in this action through or under him. Gilman v. Carpenter, 22 S. D. 123, 115 N. W. 659. A grantee of real estate under some circumstances stands in privity to his grantor, but the grantor does not stand in privity to the grantee. 23 Cyc. 1257. The former judgment in the case, of Hunter v. Kammann is not evidence against Barton as to the execution and delivery of the notes and mortgage, and consequently there is- no evidence in the case that would warrant any judgment against Barton. Recitals in the mortgage are' not sufficient. Bruce v. Wanzer, 18 S. D. 155; 19 N. W. 1102. If Barton in 1898 conveyed by warranty deed to Hunter, subject to the mortgage, then Bárton would have no interest in the foreclosure of the mortgage lien against the land, as he has parted with all his interest therein and could not be heard' to complain, as he would not be a party in interest, excepting in case the land sold for less than the amount of the personal judgment, in which- case a portion of the personal judgment would still stand against him. If Barton conveyed to Hunter tree and clear of all incumbrance, then Barton might be interested in having the whole pf the indebtedness eliminated in order to avoid liability on the covenants in his deed.

The judgment of the circuit court, is reversed, and a new trial ordered.

WHITING, J., took no part in this decision.  