
    Sally Caston et al. v. Jacket Perry.
    A recovery by the plaintiff, in an action of trespass to try'title, is conclusive between the parties, as to every title which the defendant had to the locus in quo, at the time of the trial.
    Tried before Mr. Justice O’Neall, at Lancaster, Spring Term, - 1830.
    Trespass quctre clausum fregit. The plaintiffs had formerly''' recovered the locus in quo from the defendant, in an action of trespass to try title, and bad been put in possession by the sheriff, under a writ of habere facias possessionem: after which, the defendant re-entered, and carried off a crop of corn and . fodder, which he had planted whilst formerly in possession.^At the trial of the present action, the defendant proved that the interest, in the land, of one, of the plaintiffs, had been sold by the sheriff under execution, and subsequently conveyed by the purchaser to the defendant. As this conveyance bore date prior t© the former recovery, the plaintiffs objected to the admissibility of this evidence, on the ground, that the defendant was concluded by the recovery from setting up any title, which he had at that time. The admissibility of the evidence was contended for, on the ground, that the title now set up was not in issue in the former suit, which turned upon a question of location, and the extent of the plaintiffs’ lines. The presiding Judge was of opinion, that the recovery concluded the defendant only as to any title adverse to that of the plaintiffs, and did not preclude his shewing that he was tenant in common with them. The objection was therefore overruled: whereupon the plaintiffs submitted to a nonsuit, with leave to move to set it aside.
    Clinton, for the plaintiffs,
    now moved accordingly, on the ground, that the evidence introduced by the defendant ought not to have been received.
    Blanding, contra.
    
   Colcock, J.

delivered the opinion of the Court.

We are constrained to differ from the presiding Judge in this case. The record of the recovery in the former suit between these parties is conclusive of the defendant’s rights. It is true, that to make the record evidence on a particular point, it must appear that that point was in issue; but the former action was to try the title to the identical spot of land, on which the defendant has again trespassed, and the plaintiffs were put into possession of it by a writ of habere facias possessionem. The defendant had, at that time, the very title on which he now relies, at least his conveyance bears date long anterior; and whether the former suit depended on the extent of the lines, or the title itself, is wholly immaterial. If one, having a dozen different titles, could set them up in succession in this way, a plaintiff might be kept in Court all his life. The defendant was a stranger to the plaintiffs; they had a right to sue him, and he was bound to defend himself. If he had a title, by which he could claim to be a co-tenant with the plaintiffs, he should have produced it. As to the possession ; after the plaintiffs bad been put in by the writ of possession, the defendant was clearly put out, in law, and no defence can be set up to the action, on the alleged fact, that the crop had been planted by him. If diere be any thing in such a defence, it can only avail in mitigation of damages. The nonsuit must be set aside, and a new trial is awarded. . "

Johnson, J. and Evans, J. concurred-

Motion granted. 
      
      
        videide 3 Bailey, 104, on this point. S. C.
     