
    
      Andrew Murray v. Jacob Stephens.
    
    In trespass to try title, a former recovery against one of the distributees of the land, and his acknowledgment m writing that the land in controversy was the plaintiff’s, will not operate as a conveyance to the plaintiff of the share of the distributee. Even if it could otherwise so operate, it cannot when there is nothing in the record of tire former recovery which shows that the trespass therein complained of was on the parcel of land in dispute. The utmost effect of it would be to bar the distributee himself, if so pleaded, should he af-terwards claim alone. It will not be a bar to such distributee when suing jointly with his co-distributees, nor prevent their recovering the whole of the land.
    The case of Edson v. Davis, 1 McCord, 555, approved of, and that of Barino v, M’Gee, 3 McCord, 452, questioned.
    
      Before G’Neall. J. at Colleton, Fall Term, 1847.
    This was an action of trespass to try title. The plaintiff claimed, derived, and showed a clear title from the grantee, James St. John, to whom the land was granted, 12th May, 1735, to Jacob Moles, deceased. Godard, who married a daughter of Jacob Moles, and Joseph Moles, the only surviving son of Jacob, on the 15th of March, 1827, conveyed the land to Andrew Murray. Jacob Moles left, at his death, another son, Robert G., who died intestate, unmarried, and without children, in’21 or’22. His, Jacob Moles’ widow, married. Lacy, and by him had one child, James Lácy, who, on the 12th December, 1833, gave the plaintiff a receipt in full for his share of the land. T.he plaintiff has been in possession for at least 15 years.
    In an answer to a bill filed by the plaintiff, in the Court of Equity, against Stephens, .filed and sworn to 4th January, 1832, the defendant, Stephens, admits the title to.the land to be in the plaintiff, except one-half, which, by' an agreement with him, acting as guardian for James Lacy and the plaintiff, had been assigned to the said James.
    The defendant’s claim was under a junior grant to J. Youngblood, which runs into the plaintiff’s grant. This, junior grant became the property of Hugh M’Burney, by whom it was conveyed to the defendant. While M’Burney' owned the land, he brought an action of trespass to try titles against Robert G., who disclaimed title, and thereupon the plaintiff had a verdict and entered up judgment; but where the trespass was commited, whether on the land in dispute or on some other part, did not appear.
    M’Burney’s deed to the defendant is dated'28'th May, 1832’. Soon after, perhaps in the fall, defendant settled, on the land in dispute, and by successive annual clearings took into possession 26 acres, shutting up thereby the plaintiff’s, road to Walterborough.
    An action of trespass to try titles was brought by this plaintiff against the defendant, on the 23d November, 1839. In it he was nonsuited, 12th April, 1842. In less than a year the plaintiff brought this suit. The value of the rent of the land in defendant’s possession was proved to be f> 1 per acre.
    The Circuit Judge, held, and so instructed ,the' jury, that the recovery in the case of MBurney ‘v. Moles did not vest the share of Robert G.-Moles in Hugh M’Burney. The utmost effect of it was, to bar him when claiming alonebut-it was .no bar to him when suing jointly with thé other heirs. His Honor also told the jury that the suit in ’39 stopped .the statute, and therefore the plaintiff was not in any way barred. He had a verdict for the land and $20 damages.
    The defendant appealed and moved the Court of Appeals for a new trial, on the following grounds :
    1. Because his Honor erred in deciding that the recovery, in the suit of Hugh M’Burney v. Robert G. Moles, and Moles’ acknowledgment in writing, that the land in controversy was M’Burney’s, did not vest in M’Burney, Moles’share or interest in the lands.
    ■2. Because his Honor erred in charging the jury that the first suit (in which the plaintiff was nonsuited) arrested the statute of limitations.
    3. Because the verdict was clearly contrary to law.
    
      Treville & Perry, for the motion.
    -¡-, contra.
   Curia, per O’Neall, J.

In this case it might be enough, in answer to the first ground, to say, that although the recovery of MBurney v. Moles might be a bar to him when so pleaded, still, that it did not operate as a conveyance of his interest; and hence, therefore, when used as a mere matter of evidence of title, could have no such effect as would defeat Robert G. Moles, or those claiming under him. So, too, it would satisfactorily dispose of that ground to say, that there was nothing in the record of M’Burney v. Moles which showed that the trespass therein complained of was on the parcel of land now in dispute. - It is truesapartof the Young-blood grant conflicts with the tract of land in which Robert G. Moles was then interested; but it may be that he had trespassed upon a part of that grant which did not conflict with the senior title, under which he was an heir and'distri-butee — and from his disclaimer, on which M’Barney recovered, there is very little doubt that such was the fact. This being so, there can be no question that the recovery cannot in any way defeat the plaintiff. But the recovery of M'Burney v. Moles could not, as matter of estoppel, or as a plea in bar, have the effect of preventing this plaintiff from recovering the whole of the land. If Robert G. Moles had any •several interest, it might be that whenever he, or any one ■claiming under him, undertook to assert it, that the former recovery would estop and bar such claim. But when his claim or interest was in common with others, any or all of them recovering their respective interests, or the whole tract, would have the. efiect of putting the defendant out of possession, as would be the case in trespass to try titles, as well at the suit of one of the distributees as at the suit of all of them. It cannot be that a recovery against one distributee can be set up as a bar, in a suit brought by him and his co--•distributees. The reason is obvious: Some of the parties to ■'be affected by it are other than those included in the record of such recovery. It is as to them res inter alios acta, and hence can be no bar. The ease of Chapman v. Chapman is a case very similar to that under consideration, and is certainly decisive as authority in support of the position that the recovery of M'Burney v. Moles is no bar to this plaintiff. The second ground is decided by Edson v. Davis, and as we think that case was rightly decided, it is not necessary for us to do more than refer to it, as conclusively settling this point, and to remark that, if there be error, it is in the case of Barino v. M’Gee, which has been supposed to conflict with it.

The motion is dismissed.

Richardson, Evans, Warblaw, Frost and Withers, JJ. concurred.

Motion refused.  