
    Keziah P. Shettlesworth vs. Joseph Hughey.
    Where in an action of trespass quare clausum fregit defendant, under tbe general issue, puts tbe title in issue, and a verdict is found against bim upon that issue, be cannot, in a subsequent action by tbe same plaintiff to try tbe title, dispute tbe plaintiff's title. He is estopped by tbe verdict in tbe first action.
    BEFORE WARDLAW, J\, AT UNION, FALL TERM, 1855.
    The report of his Honor, the presiding Judge, is as follows:
    
      “ Trespass to try titles.
    “ The plaintiff, in opening his ease, stated that there had been a former adjudication between these parties, of the title now in question, which was conclusive in favor of the plaintiff.
    
      “ He adduced the record of an action of trespass quare clausum, fregit, brought by this plaintiff against this defendant, to recover damages for the defendant’s invasion of the plaintiff’s possession of the same land that is sued for in this case, and he offered the grounds of appeal and Judge’s report in that former case, which were authenticated by the superscription in the handwriting of the attorney who appeared for the defendant in that case, and appears for him in this. From these it clearly appeared that on the trial of the former case, at October’Term, 1853, a verdict had been rendered, finding seventy-five dollars damages for the plaintiff, and that upon that trial, the title of the land had been put in issue by the defendant, under the plea of the general issue, and depended upon the age of Hopkins Wilder Shettlesworth, in September, 1848, when -he conveyed by deed to Gasaway Shettlesworth — a question of fact, which, after much testimony adduced on either side, had been submitted to the jury.
    “ The plaintiff now (unnecessarily, as I think,) went further. He showed a deed of conveyance for this land from H. W. Shettlesworth to the plaintiff, dated September 11, 1850, and two deeds, professing to convey the same land, which the defendant produced under notice, to wit: first from H. W. Shettlesworth to Gasaway Shettlesworth, dated September 6,1848, and second, from Gasaway Shettlesworth to defendant, dated January 4, 1851. To this he added testimony to show that the defendant entered under Gasaway Shettlesworth after January 4, 1851, and that Ií. W. Shettlesworth was under the age of twenty-one years in September, 1848.
    
      “ The defendant showed a sale of the land by the .sheriff, under judgment and fi.fa. against Joseph Shettlesworth, and a deed from the sheriff to Gasaway Shettlesworth, dated Oct. 5, 1848 — that Joseph Shettlesworth was in possession more than ten years, even twenty, before the sheriff’s sale; and he offered testimony concerning the age of H. W. Shettlesworth» which, in my opinion, was strong to show that he was of full age in September, 1848.
    “ The plaintiff fell back upon the estoppel which resulted from the former trial. The defendant contended that if there was an estoppel, the plaintiff had waived it. I held that where, as in this case, a former adjudication could not be pleaded as an estoppel, it was conclusive when shown by evidence, and that conclusive evidence was not waived or overthrown by the addition of doubtful testimony, intended to confirm it.
    “ I submitted to the jury these questions: first, was the title brought into issue on the former trial, and had the jury then passed upon it in favor of the plaintiff? If not, I directed that the jury should now find for the defendant, as independent of the former case, the plaintiff had shown no title -which could prevail against the ’ sheriff’s conveyance to the defendant’s vendor. If the title had been so put in issue, and passed upon, I directed the jury to find for the plaintiff, without further examination of the facts involved in the '¡title. Second. What were the damages ? I held that the plaintiff was entitled, if she recovered, to have two years rent.
    
      
      “ The jury found for the plaintiff the land in dispute, and eighty dollars damages.”
    The defendant appealed, and. moved for a nonsuit or new trial, on the following grounds, viz:
    
      For a nonsuit. — Because when the plaintiff closed her evidence, she had failed to prove a good and legal' title in herself.
    
      For a new trial. — 1. Because the case ought to have been submitted to the jury on the whole of the evidence.
    2. Because the record in the former case is not conclusive against the defendant.
    3. Because there was no sufficient evidence to show ¿hat the jury in the former case passed upon the title of the land.
    The case was argued in December, 1855, by Herndon for appellant, and Thomson, contra, and was reargued at this Term by the same counsel.
   The opinion of the Court was delivered by

O’Neall, J.

This case has been the subject of much dis-. cussion, both at the Bar and on the Bench.

A conclusion has been at last attained, and I desire to announce it in as brief a way as I can. There is now no doubt, that a defendant in trespass quare clausum fregit, may justify his entry by showing title in himself. Muldrow ads. Jones, Rice, 64. This necessarily involves the plaintiff’s title, for he may reply to the defendant’s apparent title by showing a paramount title in himself, and may recover on the strength of his own title. This actually occurred on the subsequent trial of Jones vs. Muldrow, Chev. 255; 1 Strob. 324, note. What is the legal effect of a verdict obtained for the plaintiff on such a trial of title ? The answer is, I think, given in Manigault vs. Deas, Bail. Eq. 293, where it is said, that a direct final judgment of a Court of competent jurisdiction, on the same subject-matter between the- same parties and privies in law or estate, is conclusive, and cannot be re-examined, in a subsequent original action in the same or any other Court.” This is not denied, but it is contended that a judgment cannot be conclusive, unless from the record, it appears to be the same matter, which was properly examinable before. This is true ! But is not that the case here ? The plaintiff alleged, that her possession had been violated by the forcible entry of the defendant. What might be put in issue ? The questions, 1st, Whether the defendant did commit the trespass, in fact ? and 2d, Whether the trespass was justified by paramount title in him 1 These issues being capable of being made, it becomes necessary to ascertain what was put in issue ? The record from its generality cannot show it. It is necessary to resort to proof of the fact, what was put in issue ? The case of Henderson vs. Kenner, 1 Rich. 474, most clearly shows, that this may be ascertained by parol. That was done here, and the question was upon the proof submitted to the jury, was the title in issue on the former trial ? The jury have answered it was, and the verdict being in favor of the plaintiff, it,follows, it seems to me, that that is conclusive.

The case of Kerr vs. Chess, 7 Watts, 367, proceeds upon the record alone, and it may be, and is, I have no doubt, often true, that the plea of liberum tenementum does not necessarily involve the title of the plaintiff to more than his possession. Eor although the defendant alleges, that he has the right to the freehold, it may be satisfied by showing, that he had the right to the possession by a lease from the plaintiff, or the plaintiff without questioning the defendant’s title, may show that he was entitled to possession under him. This very well shows the propriety of the conclusion, in that case, that the record was not conclusive of the title.

But in this case the proof is, that the title was in issue and decided for the plaintiff. The defendant had it in his power to show, that notwithstanding he put the title in issue, that yet it was met and obviated by proof, showing that a right to the possession consistent with his title prevented it from having effect. So, too, it might have been shown, that notwithstanding his title, he had entered upon an actual possession, and had been guilty of such violence, as made him, notwithstanding his title, a trespasser ab initio ; and thus that the title was not decided. In Henderson vs. Kenner, 1 Rich. 482, Judge Evans put the very case before the Court. Speaking' of trespass quare clausum fregit, he asks, “ if the defendant were to justify under the general issue, as we decided he might, in Jones ads. Muldrow, Rice, 64, by showing he was the owner of the land, and the question of title thus made was decided by the jury, could not that be shown on the trial of a second action involving the title to the same land ? I apprehend it might.” When shown, what is the effect ? Judge Harper, in whose opinion Judge Johnson and myself concurred, answers in McDowall vs. McDowall, Bail. Eq. 330, “ that what the parties have once had the opportunity of litigating in the course of a judicial proceeding, they shall not draw into question again.” The verdict on the title in the former case concludes the defendant in this. The motion is dismissed.

Glover, Withers and Munro, JJ., concurred.

Wardlaw and Whitner, JJ., dissented.

Motion dismissed.  