
    Campbell v. Ayres.
    ^Wlere to a bill in chancery, claiming title to, and the right of possession of, certain real estate, and charging that the defendant had obtained the deed under which he claimed title fraudulently, and that the grantor had never delivered the deed, the defendant, in his answer, .pleaded a former adjudication of the same subject matter, in a suit in whieh the present plaintiff was ■defendant, and the present defendant was plaintiff, brought to settle the title to said land, and obtain the possession, by the District Court of Warren -county, at the June term, 1854, in which a judgment was rendered for this ■defendant: and where the replication of the complainant admitted said •former suit, and the judgment rendered therein; but alleged that “the validity of the deed under which the plaintiff in that suit-claimed title (and which -is the deed here in -controversy), was not put in issue and adjudicated in that suit; nor was all title and claim of the present plaintiff adjudicated and settled; nor was the question as to the said deed never having ■been delivered to the present defendant, -in any way tried in that suit; nor was the question as to the defendant having obtained said deed by fraud •and misrepresentation, in anyway there put in issue and adjudicated;” SdA, That the former suit having been brought to settle the title to the land is eontroversy, and obtain the possession, -whatever went to show that the plaintiff in that suit had no right nor title, ought to have been pleaded; and that the complainant, by not putting in issue in the former suit, the matters set up in his replication in this suit, had surrendered or lost the benefit of them, unless the omission was under some of those circumstances from which chancery will relieve him.
    The principal issue in the former suit — the issue of title — involved all the matters stated in the replication in this suit, and were facts, going to prove or disprove title in the former plaintiff.
    Where a bill in chancery, claiming title to, and the possession of, real estate,. alleges no equitable circumstance as a ground of relief) it is doubtful whe- . ther the cause of action is a subject of chancery jurisdiction.
    
      Appeal from the Polk District Court.
    
    This was a bill in chancery, by James Campbell against William E. Ayres, claiming of tbe respondent, tbe title to,, and possession of, certain real estate described in tbe petition. Tbe allegations of tbe petition, are substantially as follows: Joseph Crews purchased tbe lot in controversy, of tbe board of commissioners of Polk county, Iowa, about tbe 20th of February, 1847, for tbe sum of about forty dollars,, one-sixth of which sum be paid down, and was to pay tbe balance in three equal installments of six, twelve and eighteen months, and tbe said board executed to him a bond,, conditioned to make him a deed to said lot, upon full payment being made therefor. Crews took possession of said premises, and erected improvements thereon of the value of one thousand dollars. On the 19th of January, 1849, Crews being indebted to one Frederick, in the sum of two hundred dollars, the complainant and W. A. Scott, at the request of Crews, became his security for the payment of said sum, in consideration of which, and of one hundred dollars received of said Campbell and Scott, and to secure them, in case they or either of them, should have said sum to pay, Crews executed to said Campbell and Scott, a mortgage on said premises. Crews failed to pay the two hundred dollars, at the time and in the manner specified in the mortgage, or at any time since, and being anxious to pay said money, about the 7th of March, 1849, made an agreement with the defendant, .to sell and convey to him tbe lot, in consideration, and upon tbe express condition, tbat said Ayres would pay tberefof tbe sum of four hundred and fifty dollars, in manner following: about thirty-five dollars to tbe county of Polk, being tbe balance of tbe purchase money then due; to pay off said sum of two hundred dollars, with interest, to Frederick; about one hundred and eleven dollars to one Lacey; and tbe balance, about eighty or ninety dollars, to said Crews; and Ayres was to pay all of said sums before be was entitled to receive a deed for tbe lot. Crews wejBF with the defendant to tbe office of tbe clerk of tbe boardVQfi county commissioners, and requested tbe clerk to make\ut a deed for tbe lot, inserting tbe name of Ayres as gran1®L and have tbe same ready for delivery, upon tbe defendmt complying with tbe conditions of tbe contract. Ayres paid tbe thirty-five dollars to tbe county, and Crews went home' to get tbe bond pf tbe county, which be held for tbe lot. While Crews was thus absent, and after tbe deed was executed, tbe defendant, without having complied with bis contract, and without tbe consent of Crews, wrongfully and fraudulently took and carried off the deed, and bad tbe same recorded. Ayres has not paid anything more upon tbe contract, except, perhaps, tbe hundred and eleven dollars due to Lacey. Crews then refused to surrender tbe bond for title to said lot, to Polk county, and transferred it to tbe complainant, who has since lost it, and who bad to pay tbe sum due to Frederick. Crews bad the peaceable possession of tbe premises, until within the last three or four months, when Ayres obtained tbe possession under said deed, and is now ■wrongfully bolding tbe same. On tbe 18th of August, 1849, tbe premises were sold on execution, under a judgment against Crews and tbe complainant, brought by Ayres, for eighty-nine dollars and fifty cents, and redeemed by complainant, as a judgment creditor of Crews, about tbe 11th of November, 1850 ; and there being no further redemption, tbe sheriff of Polk county, about tbe 5th of February, 1851, made a deed for tbe lot to tbe complainant. And about the 23d of June, 1854, the complainant tendered tbe respondent tbe. sum of two hundred dollars, tbe money be bad paid on tbe lot, with interest, wbicb Ayres refused to take, and refused to cancel and deliver up said deed. Tbe petition then prays, tbat tbe said deed may be set aside, and tbe title in said lot, with tbe immediate possession thereof, and tbe rents and profits wbicb are now due, may be decreed to tbe petitioner. A demurrer to tbe petition was overruled.
    To this petition tbe respondent answered, alleging, among other things, tbat at tbe March term, 1854, of tbe Polk county District Oourt, be commenced an action against tbe complainant, to settle tbe title to said lot, and obtain tbe possession thereof; tbat tbe said cause ivas taken, by change of venue, to Warren county; tbat at tbe June term, 1854, of tbe said Warren District Oourt, such proceedings were had in said cause, tbat tbe title to said premises was, by tbe judge of said court, adjudged to be in this resjiondent, and this respondent was adjudged- to have a right to tbe possession thereof; tbat, in pursuance of said judgment and recovery, be was, by virtue of a writ of restitution, issued thereon, placed in possession of said property, and tbe complainant was dispossessed thereof; tbat tbe same subject matter here in controversy has been adjudicated between these same parties; tbat tbe title of this respondent to tbe said property, and bis right to tbe possession thereof/ against the said complainant, have been adjudicated and settled; and tbat be pleads said former judgment and recovery in bar of this suit. Tbe replication of tbe complainant admits, “ tbat there was a suit between tbe complainant and respondent, tried at tbe last June term of tbe District Court, in Warren county, wbicb said suit was brought by said respondent to obtain tbe possession of said lot; and that be, by virtue of said deed as bis title, and as evidence of bis right to tbe possession, obtained a decree or order for said possession.” Tbe replication then alleges; “ But tbe complainant expressly states, tbat tbe validity of said deed was not put in issue and adjudicated in said suit nor was all title and claim of tbe complainant adjudicated and settled; nor was tbe question as to the said deed never having been delivered to said Ayres, in any way tried in said suit, or the equitable right and interest of the complainant in any manner therein put in issue, or adjudicated; nor was the question as to the respondent having obtained said deed through fraud, deception, and misrepresentation, in any way there put in issue.”
    The cause was submitted to the court; and after hearing the'testimony, a decree was rendered, as follows: That on the payment of the sum of $254.58, into the hands of the clerk of this court, for the said respondent, within ten days from this date, the said respondent, within ten days therefrom, release and quit claim to the said complainant, all title, and color of title, to the lot described in the proceedings, and deliver the possession thereof, with the release; and in default of such release, then that this decree operate as such release, and the complainant have the possession. And it is further ordered, that the complainant pay the costs which have accrued in this suit. From this deeree, the respondent appeals.
    
      Jewett & Knapp, for the appellant.
    
      Bates & Finch, for the appellee.
   Woodward, J.

Now, why were not the matters ■stated in the replication of the complainant, put in issue and tried in that former suit? There is not a reason given. There is no pretence that the plaintiff was prevented by surprise, accident, or any other circumstance whatever. The plaintiff cannot suppose, that he had a right to keep silent on these matters in the former trial, and then bring them up in a subsequent suit. But he seems to think that these matters, not being put in issue and tried, were not adjudicated. It must be remembered, that tbe former suit was brought to settle the title to said lot, and obtain the possession thereof, and that, therefore, whatever went to show that the plaintiff in that suit had no right nor title, ought to have teen pleaded ; and that, by not putting them in issue, the complainant has surrendered or lost the benefit of them, unless the omission was under some of those circumstances from which chancery will relieve him. And of these, he has shown none. These matters here shown, are. but points going to prove or disprove title in the former-plaintiff. The principal issue in that suit, that is, the issue of title, involved all these. Major continet in se minus. The former judgment is conclusive, and determines this case.

Another point will be adverted to briefly. It is at least doubtful, whether the cause of this action is a subject of chancery jurisdiction. There is no one equitable circumstance set forth in the petition, and none is indicated by the transaction, unless the complainant could have averred, that Ayres bought of Crews, with notice of the mortgage from Crews to Campbell. But this he does not do. And if he had done it, and the fact had been proven, how would that warrant a decree, that Ayres should release title to Campbell, on the latter paying him two hundred -and fifty-four dollars ? It might have been good ground to decree that Ayres should hold subject to the mortgage, and that this should first be satisfied, but it is not easy to see how that could take away Ayres’ title by decree; and further, the prayer of the bill does not seek to subject Ayres’ title to Campbell’s mortgage, but to set aside Ayres’ deed, and for a decree of title in Campbell.

The decree of the District Court is reversed, and the bill dismissed, but without prejudice. 
      
       Weight, 0. X, having been of counsel, took no part in the decision oí filis .cause.
     