
    Joseph Binda and Others vs. Moses M. Benbow.
    
      Trespass to try Title — Estoppel—Trespass.
    Where judgment for the defendant in a former action between the same parties, is relied upon, under the Act of 1744, (3 Stat. 612,) as a bar to a second action of trespass to try title, commenced more than two years after the first was dropped, it must appear with such certainty as the common law requires in cases of estoppel, (that is, “ certainty to every intent,”) that both actions were for the same land.
    Where plaintiffs sued out their writ in trespass to try title, for “ a certain plantation or tract of land of the plaintiffs, situate on the waters of Santee river,” and then, without proceeding further, let fall their action, and judgment was entered for the defendant: — -Held, that this judgment was no bar to a second action, brought more than two years afterwards, between the same parties and in the same district, for a “ certain plantation and close of the plantiffs,” described generally as lying within the-district, because it did not appear to the Court, that the two actions were for the same land.
    Upon evidence, in trespass to try title, that defendant claimed the land as his own, and that his son, considering it his father’s, entered, and occupied it with the knowledge of defendant and without objection from him, the jury found the defendant a trespasser, and, on appeal, their verdict was not disturbed.
    Trespass to try title will lie against the landlord, though he never was in possession, the entry being by his tenant.
    BEFORE WHITNER, J., AT CLARENDON, FALL TERM, 1857.
    Tbis was an action of trespass to try title. Tbe writ was issued in Sumter District, to Fall Term, 1853, and described tbe land as “ a certain plantation and close of tbe plaintiffs, situate, lying and being in tbe district and State aforesaid.” Tbe action was first tried in that district at Fall Term, 1855, when a nonsuit was ordered, which, on appeal, was set aside. Eor a full understanding of tbe case see tbe report, 9 Bich. 15.
    At this trial tbe plaintiffs confined tbeir proof to the grant spoken of as tbe Sumter grant, to tbe land included within which they showed title. In proof of a trespass, they showed by tbeir surveyor, that P. Q-. Benbow, a son of defendant, was in possession of a field within tbe lines of that grant, and also of a junior grant to one Bowman, under which the defendant claimed. They then called
    
      P. G-. Benbow,
    who testified, that in 1851, he cleared the field in question and had cultivated it ever since; -worked his own hands; was then twenty-four years of age; was married the year after; defendant did not authorize him to take possession, but pointed out another place on the Bowman grant which he might clear and cultivate; witness preferred this place, and entered without - consulting his father; acted entirely of his own head; considered the land his father’s; in Spring of 1852, his father, for the first time, saw the clearing as he was passing by; said he did not know witness was at work there; made no objection.
    
      L. B. Banks, also testified,
    that at Eall Term of the Court for 1856, or at Spring Term, 1857, he had a conversation with defendant relative to the lands in dispute between him and plaintiffs; defendant spoke of the lands as his own; offered to sell them to witness; said he was anxious to sell, but had not been able to do so because of the law suit; had no doubt the decision would be in his favor.
    Eor the defendant, the grant to Bowman was produced, and its location shown by a surveyor. This grant covered a portion of the land included within the lines of the Sumter grant, and most of the field cultivated by P. G-. Benbow. Proceedings in equity for partition of the land granted to Bowman between his heirs, were also produced. Under these proceedings, the defendant, in 1840, became the purchaser of the land. The defendant also produced an exemplification of a writ in trespass to try title, issued by tbe plaintiffs in Sumter District, to Fall Term, 1840, against tbe defendant, wbo was therein called upon to answer to tbe plaintiffs, “ of a plea, wherefore, with force and arms and so forth, in the district and State aforesaid, into a certain plantation or tract of land of them, the said plaintiffs, situate on the waters of Santee river, he broke and entered,” &c., and of a judgment, as of Fall Term, 1841, entered in April, 1842, which, reciting that the plaintiffs "who brought the writ aforesaid, do not come, nor further prosecute their suit thereon,” adjudged the plaintiffs to be in mercy, &c., and the defendant to go without day, and also that the defendant do recover against the plaintiffs his costs and charges, &c., and that he have execution therefor, &c. The defendant relied upon this judgment as a bar to the present action.
    The case went to the jury, and his Honor instructed them, that as to the bar, the evidence furnished should show clearly that the two suits, were not only between the same parties, but for the same land. If this was done, then, unless it appeared that the former suit had failed because there had been no trespass, or that a subsequent title had been acquired by plaintiffs, the objection would be fatal to their recovery. He thought, and said to the jury, that the evidence as to the identity of the land, as furnished by the proceedings, was too vague and uncertain. He was not satisfied that the trespass was shown to have been by the connivance, authority or sanction of the defendant, and was inclined to the opinion, that on this point the plaintiffs had failed. This question, however, being one of fact, he referred to the jury, who found a verdict for the plaintiffs.
    The defendant appealed, and now moved this Court for a nonsuit, or new trial, on the grounds :
    1. Because his Honor held and charged, that the plaintiffs were not barred by tbe proceedings in tbe former suit between tbe same parties for tbe same land.
    2. Because there was no proof of any trespass committed by the defendant, and therefore tbe verdict was without, and contrary to evidence.
    3. Because Pinckney Benbow, tbe trespasser, being in possession, the plaintiffs (not having, and never having had possession,) cannot recover against the defendant (not being in possession) even if he had sanctioned the trespass, and therefore the verdict is contrary to law.
    Bellinger, for appellant,
    cited Henderson vs. Kenner, 1 Bich. 474; Act of 1712, 2 Stat. 584. The proceedings in the first action are a bar, under the Act of 1744, to the second, more than two years having intervened between the termination of the first and the commencement of the second. This seems to be conceded, if the two actions were for the same land. It is said, however, that there is too much uncertainty in the description. This is no objection. Where the parties are the same, and the district is the same, it should be assumed that the land sued for is the same, and the onus should be on the plaintiffs to show the contrary. By any other rule, the Act, under our practice, which allows of very general terms of description in writs and declarations, will be almost a dead letter. It will be seldom, indeed, where a plat has not been made and returned to the Court, that a defendant will ever be able to avail himself of the bar of the statute. As to the trespass, he submitted, that none had been shown, and on that ground the verdict should be set aside.
    
      J. S. Gr. Richardson, contra.
    It does not appear that the two actions were for the same land. The writ in the first action is in very general terms. The description is uncertain .and will apply to any land in Sumter District, on tbe waters of Santee river, wbicb, in 1840, when tbe writ was issued, formed, with one of its two main branches, a boundary of tbe district for more tban fifty miles. Tbe doctrines of tbe common law relative to estoppels, would seem to be applicable to this case. In tbe notes to tbe Duchess of Kingston's case, 2 Smith, L. C. m., p. 438, it is said, that “tbe conclusive effect of a record is limited by certain rules and considerations,” tbe fourth of wbicb is, “ where tbe allegation in tbe record is uncertain. Eor an estoppel, not being favored in the law, ought to be certain to every intent. Co. Lit. 352, b; 303, a. And therefore, ‘ if a thing be not directly and precisely alleged, it shall be no estoppel.’ Co. Lit. 352, b.” Tbe record here cannot be said to come up, in any particular, to the requirements of this doctrine. Whether parol evidence would have been admissible to show what land was claimed by the first action, is more than questionable. It is enough, however, for .this .case to say, that- no such evidence was offered, and that the writ itself does not show, what “plantation or tract of land” was claimed. The bar contended for in this case, that is to say, a bar founded upon a judgment of nol. pros., or discontinuance, where the cause in which the' judgment was entered, had not even proceeded so far as a declaration, is an anomaly in the law; it is founded upon tbe Act of 1744, P. L. 190, 3 Stat. 612, and is peculiar to our action of trespass to try title. No case has been found in our books where tbe action — tbe letting fall of wbicb has been pleaded in bar — bad proceeded no further tban a writ; in all tbe reported cases declarations bad been filed. Direct authority upon tbe point cannot be found in tbe English books; but there is a class of cases known to tbe common law, which bears a striking analogy to this, so much so, as at least to throw strong light upon it, if not to control it. -It is that class of cases where a former suit pending, is pleaded in abatement of a second action for the same cause. The rule there is, that in “ writs which' comprehend certainty, as debt, detinue, &c., the first shall abate the second.” ’ But in “ writs which comprehend no certainty, as assize, trespass,” &c.; “ where no certainty is contained” there, before declaration filed, the first action cannot be pleaded in abatement of the second; Sparry's case, 5 Co. 61, and the reason is, “ because it does not appear to the Court that it was for the same thing.” Bac. Abr. Abatement. (M.) But it is said that the Court will assume that the two actions were for the recovery of the same land, and that the onus of showing the contrary is on the plaintiffs. This is novel and extraordinary doctrine, and one that ■ certainly receives no countenance from those universally received principles of evidence which throw the burden of proof upon him who affirms — principles which would seem to be especially applicable to a defence which is not only “ not favored in the law,” but which is even denounced as “odious.” No authority, however, has been adduced in support of the position, and it may well be allowed to pass.
    Assuming now, for the purposes of the argument, and for those purposes only, that the two actions were for the same land, still it is contended, that the first is no bar to the second, under the principles ruled in Henderson vs. Kenner, cited by the counsel for the appellant; and that, for two reasons, first, because the defendant was no trespasser upon the land within the lines of the Sumter .grant when the first action was brought, or at any time before; and second, because he was no trespasser when that action was dropped, or at any time within two years after. In this case the defendant denies that he has ever trespassed, and there is no proof of any trespass prior to 1851. It seems, therefore, fair to infer, that there was none prior to that time. Now, it would seem clear upon principle, that, where one brings trespass to try title, and fails in his suit because no trespass had been committed, the judgment, whether it be upon verdict, nonsuit, or discontinuance, is no bar to a second action brought after trespass committed, for tbe very obvious reason that tbe question of title could not have been determined in tbe first action. It seems equally clear, tbat, as tbe policy of tbe Act of 1744, is, like tbat of tbe statute of limitations, to quiet tbe possession, tbe Act does not apply and bar tbe second action where tbe defendant is not in possession, or where be commits no trespass within tbe two years, sufficient to sustain tbe action. Tbe case of Henderson vs. Kenner, appears to be based upon both these principles.
    But it is said, tbat tbe plaintiffs, even if they have title which can be enforced, must fail in this action, because no trespass has been committed by defendant. Upon tbat point, it would seem to be enough to say, tbat tbe question is one of fact; there was testimony to go to tbe jury, and tbeir verdict is conclusive. But, with deference to bis Honor who tried tbe cause, it is submitted tbat tbe verdict was entirely right. Tbe defendant claimed all the land included within tbe Bowman grant. His son desired to cultivate a field upon it, and tbe defendant pointed out a place which happened to be outside of tbe Sumter grant, which be might occupy. Tbe son preferred this place, which turns out to be within tbe lines both of tbe Bowman and Sumter grants, and not doubting tbat bis father-would sanction tbe act, entered there. He held tbe place, not as bis own, but as bis father’s. Tbe defendant, a few months after, saw where bis son bad entered and taken possession, and made no objection; and from tbat time to this, though he continued to claim tbe land as his own, has never, except at tbe trial, repudiated tbe act of his son. This shows, not tbat he authorized it, but tbat be sanctioned and adopted it, not in words, but by bis conduct. Tbe son clearly considered himself, or at any rate acted as bis father’s tenant; and if his possession bad continued for ten years, to whose benefit would it have inured ? Besides, in this form of action, where tbe defendant sets np title in bimself, tbongb some proof of trespass must be given, it is not required to be very strong. Indeed, so immaterial is tbis matter considered, that where a contest arises arises in tbe Court of Equity as to tbe title to land, and that Court orders an issue or action at law to determine tbe right, as it always does, it is tbe universal practice to require tbe defendant in tbe issue or action to admit ouster; and a similar rule in tbe Law Court might not be unwise.
   Tbe opinion of tbe Court was delivered by

WITHERS, J.

An action, in the form of trespass to try title, was instituted by these plaintiffs against tbis defendant, by a capias ad respondendum, returnable to tbe Eall Term of tbe Court of Common Pleas for Sumter District, in tbe year 1840, whereby the defendant was required to answer wherefore, “ into a certain plantation or tract of land of them tbe said plaintiffs, situate on tbe waters of Santee river, be broke and entered.” At tbe Eall Term of tbe said Court, in 1841, tbis defendant entered up judgment against these plaintiffs, because “ they do not come and further prosecute their suit,” wherefore it was adjudged that tbe defendant have bis costs, and execution for tbe same, and go without day, and so forth.

Tbe writ in tbe present case was returnable to tbe Eall Term of 1853, is between tbe same parties, and is also an action of trespass to try title. It calls upon tbe defendant to answer, in tbe same Court aforesaid for Sumter District, wherefore, “a certain plantation and close of tbe plaintiffs, situate, lying and being in tbe District and State aforesaid, tbe defendant did break and enter,” and so forth.

Tbe plaintiffs let fall their first action aforesaid, about twelve years before tbe second one was instituted.

Tbe first question raised is, whether tbe plaintiffs be not barred of tbe present action, by force of tbe first section of tbe Act of 1744, 3 Stat. 612, , ,

That section supersedes as well tbe common law rule, that ejectment might; be maintained by successive actions ad libitum, as tbe qualification of that rule by tbe fourth paragraph of tbe Act of 1712, which made one unsuccessful action by a plaintiff “ conclusive and definitive on tbe plaintiff’s part forever.” 2 Stat. 584.

Tbe doctrine of estoppel by matter of record, is not strictly applicable to this case. Tbe first action brought by these plaintiffs never reached an issue, there was no confession, no verdict, tbe action- was let fall upon writand waiving the inquiry whether that can be called a record, the judgment entered up was merely that defendant have his costs and go without day. But it is not intended to deny that what a party had an opportunity to litigate before a Court of competent jurisdiction, and did not, is effectually concluded against him, quoad hoc. The question here must be resolved by the rule prescribed in the Act of 1744; for there was an action by these plaintiffs against this defendant, brought by way of claim to land, and in the form substituted in lieu of ejectment, and it was let fall more than two years before the present one was instituted. If the land was the same now claimed, the plaintiffs are debarred and forever excluded of and from any further action or suit for the recovery of the said land.” •

The question, therefore, is reduced to this: is it the same land claimed in both actions ? Eor it is too clear to admit of discussion, that the subject matter must be the same if the statute is to work a bar to the second action.

We have no evidence of identity except what has already been set forth, to wit., the claim was and is for land situate in Sumter District; in the first case described merely to be on the waters of Santee river,” and in the other as “situate, lying and being in the District and State aforesaid.” How much more of specific description may bave appeared in tbe declaration in tbe present case, we are not informed, but however minnte tbe description may bave been, it could scarcely, in and of itself, bave excluded tbe conclusion, that tbe first action may bave been for a different parcel of land “ situate on tbe waters of Santee river.”

Tbe doctrine as to estoppel by tbe common law, and in pleading may afford a good rule for tbis point, tbougb tbe bar bere seems not to bave been pleaded. There must be, in estoppels, a certainty to a certain intent in every particular,” Coke Lit. 3.03, a.; every estoppel, because it concludetb a man to allege tbe truth, must be certain to every intent, and not to be taken by argument or inference.” lb. 352, b. “ It ought to be a precise affirmation of that which maketb 1¡he estoppel.” Ib. One general form of expression when it may be said that an estoppel is not established, however that species of defence may be adduced, is, where tbe allegation in the record is uncertain. Surely, if we treat tbe first writ by these plaintiffs as tbe record, or as tantamount to such, for tbe purposes of tbis question, we may safely say tbe allegation is glaringly uncertain as to any precise parcel of land claimed to bave been invaded, and totally devoid of any matter by which it can be identified, as tbe parcel of land now in question.

It is contended, however, that tbe presumption should be in favor of tbe identity of tbe cause of action in both cases, and tbe burthen to show tbe contrary upon the plaintiffs. No authority is cited for tbis, and tbe force of tbe argument seems to be opposed to it.' Eeliance is placed upon a former writ as a bar or a sort of estoppel, such as arises out of tbe Act of 1744. Suppose it to be regarded a record, and pleaded instead of being offered in evidence. Tbe record would be judged by itself, no averment would be allowed against it, none to vary its import, if precise and certain. In such an attitude of tbe contest, tbe defendant would fail to maintain tbe identity of tbe canse of action on tbe two occasions. If tbe same matter be offered in evidence, and it fails for tbe purpose, proprio vigore, it must be incumbent on bim wbo pleads, or adduces as evidence on another issue, tbe same instrument, on bim wbo affirms, to attach to tbe instrument beld up as a bar or estoppel, that precision which is demanded and is indispensable to give it that effect. If that might be done under tbe lead of Henderson vs. Kenner, 1 Rich. 474, it is enough to say that it was neither done nor proposed to be done; for we do not learn from tbe report that any parol evidence was offered to give point and precision to tbe cause of action contained in tbe writ of 1840. Tbe generality of complaint in a writ and of allegation in the declaration, usual in our actions of trespass to try title, may work tbe very difficulty which tbe defendant encounters in this case, if be be indeed disabled thereby to show what is true, but that is nothing to tbe purpose of tbe present question.

Tbe second ground of appeal complains of tbe verdict, because there was no evidence of trespass by Moses M. Ben-bow, whatever may be true as to bis son Pinckney. It was in evidence that Pinckney claimed nothing for himself, that he went upon land claimed by his father, tbe defendant, that tbe father knew tbe occupation by bim of tbe locus in quo, and did not blame or forbid it, that be referred in general to this action, as interposing embarrassment to a sale of tbe lands to which be referred in the conversation with Hanks, and if tbe action embraced other parcels as well as tbe locus in quo, it was for the jury to say whether he meant to include also tbe latter, as being in contest between bim and the plaintiffs. All this evidence was fit for tbe jury and for tbe jury only, and they have affirmed that it proved the defendant to be a trespasser. We cannot affirm that he was not, nor that there was no evidence be was; and the fact that if tbe continued adverse possession of Pinckney bad ripened into a divestiture of tbe plaintiffs’ title, it would have inured to tbe advantage of tbe defendant, on tbe law of landlord and tenant, disinclines to refrain from setting aside tbe verdict, although we see that tbe testimony to establish a trespass by tbe party sued was meagre.

What is just uttered may apply also to tbe third ground, if indeed that has not been settled by tbe former judgment in this case; vide. 9 Rich. 15. . Qui facit per alium facit per se, teaches that if one authorizes a tortious act, as by illegally putting a tenant in possession of land, or instigating him to any other trespass, or confederates in tbe perpetration of it, be is responsible; and so be may be a trespasser by relation, that is by sanctioning a trespass committed for bis benefit. It cannot be that a plaintiff would be obliged to sue alone tbe representative of another in unlawful possession of land to tbe exoneration of tbe principal, else it may happen that be would be confined to tbe pursuit of an irresponsible adversary, and visited with a barren judgment, while be who instigates and reaps tbe fruits, may rest secure. Among trespassers tbe plaintiff may elect whom be will sue, and be has done only this in tbe present instance.

Tbe Act of 1744, does indeed look to tbe quieting of possession of land; but tbe possession of a tenant is that of bis landlord, and tbe jury have found such to be tbe fact in this instance.

Tbe motion is dismissed.

O’Neall, Wardlaw, Whither, Glover and MüNro, JJ., concurred.

Motion dismissed. 
      
       Inclines us. Qu ?
     