
    Lewis Parker and Harris Parker vs. John Legett.
    
      Trespass to Try Title — Record—Evidence—Witness.
    Where, in trespass qaare clausum fregit, against several persons claiming in the same right as tenants in common, a verdict is rendered for defendants, the death of one of the defendants will not preclude the survivors from using the record as evidence in a subsequent action of trespass to try title, brought by them against the plaintiff’ in the first action, for recovery of the same land.
    The evidence of deceased witnesses given in the action of trespass quare clausum fregit, held to be competent in the action of trespass to try title.
    BEFORE GLOVER, J., AT MARLBOROUGH, SPRING TERM, 1859.
    So much of the report of his Honor, the presiding Judge, as relates to the questions decided in the Court of Appeals, is as follows:
    
      “ The plaintiffs, with the widow and fourteen other children and two grandchildren, are the statutory heirs of Moses Parker, deceased, and in that right claim their undivided interest in the land in dispute. In a former action of trespass, quare clausum fregit, by this defendant against the plaintiffs and William Parker, since deceased, for a trespass on the same land, the defendants pleaded the general issue and liberum tenementum, and a verdict was rendered for the defendants. I refused to admit that record to be offered in evidence in this case, or to permit parol evidence of what witnesses, now deceased, swore on that trial, on the ground that, if relied upon, either as an'estoppel or as evidence, the parties are not the same.”
    The jury found for the defendant.
    
      The plaintiffs appealed, and now moved this Court for a new trial, on the ground:
    1. Because the Court ruled out the record in the case of John Legett vs. Lewis Parker, Harris Parker and William Parker, the same having been an action' of trespass guare clausum fregit, pleas, general issue and liberum tenementum, wherein the title to the land in dispute.had been put in issue and decided for the defendants in said action, with no difference between that and the present action, except the death of William Parker, a tenant in common with the present plaintiff's. all claiming then, as -now, through Moses Parker, their common ancestor.
    2. Because the Court also ruled out parol testimony of what witnesses now deceased swore on the trial of the action of trespass guare clausum fregit above stated, whereas it is submitted, the present action is substantially the same, and is strictly so, with the exception of the change of the relative position of the parties to the record, which of itself ought not to avail to exclude the testimony offered.
    Johnson, for appellants.
    The record of the former case, and parol evidence of what, witnesses, now deceased, swore on its trial, should have been admitted in evidence, as the same subject-matter was in issue, and the parties in both cases were substantially the same. Outram v. Morewood, 3 East, 346; Wood vs. Jackson, 18 Wend. 107 ; Lamar vs. Payson, 7 Eich. 509 ; Hitchen vs. Campbell, 2 Black. Eep. 827 ; Hancock vs. Welch and Cooper, 1 Stark. 347 ; Lawrence vs. Hunt, 10 Wend. Eep. 80 ; Phillips on Ev., note, 561; Jackson vs. Wood, 3 Wend. 27; Henderson vs. Kenner, 1 Eich. 474; Shutileworth vs. Hughey, 9 Eich. 387 ; 5 Denio, 370; 13 Howard, 307.
    
      
      Inglis, contra,
    cited 1 Phil. Ev. by C. & H. 391, notes, 111, 112 ; Crawford vs. Ward, 7 Geo. Eep. 445; Binda vs. Benbow, 11 Eicb. 24; Bishop vs. Tuclcer, 4 Eich. 181; Richardson vs. Moody, 2 Brev. 42 ; Douglas vs. Remanáis, 2 Bail. 78 ; Par-leer vs. John son, 2 Mill, 9; Oourdin vs. Davis, 2 Eicb. 486; Atlcinson vs. Anderson, 3 McO. 223.
   Tbe opinion of tbe Court was delivered by

O’Neall, J.

On tbe two first grounds of tbe motion, we think tbe plaintiffs must bave a new trial.

1st. The Judge below thought, that the record of this defendant against these plaintiffs, and a deceased brother, was not between tbe same parties, and therefore refused to permit it to be given in evidence. Tbe persons now before tbe Court were tbe parties then : tbe brother William, who is deceased, claimed in tbe same right with tbe plaintiffs. How bis death can deprive tbe survivors of the benefit of that recovery, is not perceived.' Tbe force and effect of the recovery is another question, but unquestionably it was evidence, which ought to bave been received, at least in aid of tbe question of location. But I go further ; it may bave tbe effect to conclude tbe present controversy. .

Tbe former case was in trespass guare clausum fregit, and tbe verdict was in favor of tbe then defendants, now tbe plaintiffs. In Shettlesworth vs. Hughey, 9 Rich. 387, it was held that in such an action, if tbe title be put in issue, it is conclusive. In that case merely tbe general issue was pleaded. Here tbe general issue and liberum tenementum were pleaded. Both by tbe record, and tbe proof, tbe title was put in issue, and clearly tbe record in that case may end tbe controversy here. In Manigault vs. Deas, Bail.Eq. 293, the ruléis stated that “ A direct final judgment of a Court of competent jurisdiction, on tbe same subject-matter, between tbe same parties, and privies in law or estate, is conclusive, and cannot be reexamined in a subsequent original action, in the same or any other Court.” Apply that rule: the judgment was a final one, of a Court of competent jurisdiction, on the same subject matter. Eor there, as here, the question was, Who had title to the land? The jury said the present defendant had not title to that which was then in dispute, as evidenced by the trespass, and the title then located for the defendants. The parties were the same, except the deceased brother, who claimed in the same right with these plaintiffs. If his absence from the record in this case could have any effect, surely the plaintiffs are privies in estate with him. That the plaintiffs here may show, by parol, what was the matter adjudged in that case, if the pleadings do not sufficiently show it, is abundantly proved by Henderson vs. Kenner, 1 Rich. 474; Shettlesworth vs. Hughey, 9 Rich. 387; and Jones vs. Muldrow, Chev. 254.

2d. That the evidence of the deceased witnesses in the former case was competent in this,'is, it seems to me, clear, and is established by the same reasoning which brought me to the conclusion that the recovery was admissible in evidence. The parties are the same for all the purposes of this case.

The motion is granted.

Wardlaw, Glover, and Mü-nro, JL, concurred.

Motion granted.  