
    John Thomas, et al., v. Harmon Geiger and Wm. Geiger.
    The defendant, in an action of trespass to try title, cannot, after a recovery against him, in turn become plaintiff, and sustain a second action to try title.
    Motion to reverse judgment on demurrer.
    
      This was an action to try the title to 350 acres of land, in Lexington district.
    -x--oqi The defendant pleaded the general issue, and a '^special plea in bar. >pjle Specja] p]ea stated, that the defendants were the purchasers of the land in question, from-, who recovered it in an action of trespass, to try title, instituted by them against the present plaintiff, in the Court of Common Fleas, for Lexington District, and that on an appeal to the Constitutional Court, that recovery had been confirmed.
    To this plea, there was a general demurrer, on which the present question arose.
    The presiding Judge overruled the demurrer, and gave judgment for the defendant in the action.
    A motion was made to reverse that decision, on the ground that the defendant in an action of trespass to try title, is not prevented by a recovery against him, from becoming himself in turn the plaintiff, and sustaining a second action to try the title.
   The opinion of the Court was delivered by

HugeR. J.

Prior to the Act of 1791, 1 Faust, 65, 2 Brev. Dig. 304, the common method in this State of trying titles to land, was by an action of ejectment, regulated, however, by several statutory provisions. By the 4th section of the Act of 1712, Public Laws, 101,.for settling the titles of the inhabitants of this province, &c., (Trott’s Laws, 257,) the action of ejectment “was restrained from being'brought more than once.” By the Act of 1744, P. L. 191, “for allowing the plaintiff a demandant in ejectment to bring more than one action, for the recovery of lands, &e., only a second verdict or judgment, nonsuit or discontinuance, is conclusive on the plaintiff.” Nothing is said of the. defendant in ejectment. His situation was unchanged, and he could have brought' his action of ejectment after recovery had against him in a second action. In this situation stood the parties, until the year 1791, when the Legislature abolished the action of ejectment, and substituted therefor the action of. trespass. In the same Act, it is delated, “that every Act of Assembly relative to *koa-i actions of ejectment shall be construed* to relate to actions of tres-J pass, where the titles of land shall come in question. This Act transfers none of the peculiarities of an action of ejectment to trespass to try title to land, but such as has been created by Act. As the right of the defendant, therefore, to an action of ejectment after recovery had against him in a second action, did not grow out of the Acts of Assembly, it is not retained by the Act of 1791.

It. has been contended, that a change of action does not alter the rights of the parties, and therefore, in an action of trespass to try title, the parties retain the power of renewing the action as often as was permitted in the action of ejectment. The rights of the parties must not be confounded with the incidents peculiar to forms of action. The fictitious action of ejectment was substituted for a real action. As trespass to try title is now substituted for ejectment, were the rule contended for to prevail, trespass to try title, as well as ejectment, must be governed by the incidents peculiar to a real action. This doctrine would leave no other'difference between a real action, ejectment, and trespass to try title, than a name:- The Legislature, however, contemplated a greater change. They were dissatisfied with the fictitious proceedings iu ejectment and their consequences, and therefore substituted the action of trespass.

Stark, for the motion. Blanding, contra.

The motion is refused.

Colcock and Johnson, JJ., concurred.

See Dyson v. Leek, 5 Strob. 142. 
      
       5 Stat. 170, § 4; amended, 7 Stat. 276, § 16.
     
      
       2 Stat. 584.
     
      
       3 Stat. 612.
     