
    The Bank of the State of South Carolina vs. Stephen Bridges.
    
      Trespass to try Title — Estoppel—Title subsequently acquired,.
    Where there is a recovery against the defendant in an action of trespass to try title, and he subsequently acquires title by taking out a grant and re-enters, the recovery in the first is no estoppel in a second action for the same land.
    BEFORE MUNRO J., AT SPARTANBURG-, FALL TERM, 1857-
    The report of Ms Honor, tbe presiding Judge, is as follows:
    “This action was trespass to try titles. The plaintiff claimed title to the land in controversy, under, a grant from ■ the State to one Abraham Markley, for one thousand acres, date the 3d Nov. 1788. On the 22d June, 1822, the plaintiff recovered a judgment against Markley for a large amount; which judgment, having been subsequently revived against Markley’s legal representative, the land in question was levied upon and sold by the Sheriff of Spartanburg, and bid off by the plaintiff, to whom it was conveyed by Sheriff Pool on the 14th day of October 1847.
    “ The land was proved to have been originally well timbered, 'but that from the latter part of the year 1855, or the commencement of 1856, the defendant had cut down and carried away a large quantity of it, supposed to be about two-thirds.
    “It was proved by one of the plaintiff’s witnesses, that the defendant admitted that he was cutting the timber for the South Carolina Manufacturing Company, — and by another witness, — Wm. Westbrook — that defendant had said ‘he was cutting for Mr. Bobo, and that be would go on cutting, as long as directed to do so by Mr. B.’
    “It was proved by another witness, James Nesbit, that Mr. Bobo was now, and had been for the last eight or ten years, a stockholder in, and the Superintendent of said Company.
    “It was at this stage of the case that the plaintiff offered in evidence the record referred to in the first ground of appeal, the title of which is The Bank of the State of South Carolina vs. the South Carolina Manufacturing Company, on which a recovery was had by the plaintiff against said Company for the land it question. '
    “The ground insisted upon for the admissibility of the evidence in question was, that as Mr. Bobo was a stockholder of the Company at the time the judgment was rendered, and as defendant had cut the timber by Bobo’s direction, and for the use of the Company, such a privity was thereby created between the defendant and the Company, as to operate as a conclusive estoppel upon his right to contest the plaintiff’s claim to the land in question.”
    “ The defendant then introduced a .grant from the State to Simpson Bobo for nine hundred and eighty-seven acres, date the 25th of June 1851. As the remaining question was one exclusively of location between the Markley and Bobo grants, it was submitted to the jury, who found for the defendant.”
    The plaintiff appealed, and now moved this Court for a new trial on the grounds:
    1. Because the Court refused to admit in evidence the record in the case of the Bank'of the State of South Carolina against the South Carolina Manufacturing Company.
    2. Because the verdict is against law and evidence.
    Thomson, Choice, for .appellants.
    Bolo, contra.
   Tbe opinion of the Court was delivered bj

Munro, J.

Whether there was error in excluding the record referred to in the plaintiff’s ground of appeal, depends upon two things. 1st, Was there such a privity established between the defendant, and the parties litigant in such proceeding, that the former is as much bound by it, as if he had actually been a party thereto, and if so, is he thereby forever estopped from setting up an adverse title to the land, no matter where, or from whom he may have acquired it ?

In reference to the first point, the defendant’s legal identity with the parties to the record in question, we confess to no little difficulty in comprehending, how a body corporate, for such we 'are given to understand was the character of the South Carolina Manufacturing Company, at the time of the recovery against it, a mere legal entity, a factitious creature of the law, could be held capable of committing a trespass. If a body corporate can be held capable of committing a trespass, may it not with equal reason, be held capable of commiting treason, felony, or breach of the peace.

Such doctrine, would doubtless have been viewed as a novelty, at the time when Mr. Chitty published his work on pleading. See 1 Chitt. PL-46.

But we are spared the necessity of deciding that point, for conceding the defendant to have sustained toward the parties to that proceeding the relation which is contended for, it by no means follows, however, that he is forever precluded from contesting the plaintiff’s title.

The defendant, as we have seen, entered upon the premises in dispute, under the grant which had been taken out by Mr. Bobo, subsequent to the termination of the plaintiff’s action against the South Carolina Manufacturing Company. In that action both parties claimed the land in dispute, under the Markley title; the contest, as we have seen, resulted in favor of the plaintiff; and to that extent, that is, so far as the Markley title was concerned, such recovery was conclusive upon the defendants, and those claiming title under them. But it has never been doubted, that after a recovery in ejectment, it is entirely competent for the defendant to re-enter the premises under an independent title, subsequently acquired, and not previously adjudicated.

It is not the former recovery which constitutes the estoppel, it is the subject matter which was in contestation between the parties; upon the familiar principle, that where the same point has been litigated between the same parties, and decided upon by a Court of competent jurisdiction, it cannot be again called in question. See Jones vs. Muldrow, Chev. 254; 3 East, 355.

We are therefore satisfied, that the record offered in evidence by the plaintiff, was properly excluded, and the motion is dismissed accordingly.

O’Neall, Wardlaw, Withers, WhitNer and Glover, JJ., concurred.

Motion dismissed.  