
    Dunckel against Wiles.
    A judgment récord in an action of trespass, in which the declaration alleged that the defendant wrongfully entered and felled timber in a close of the plaintiff, describing it by metes and bounds and as containing about one hundred acres, and the plea was that the part of the close in which the supposed trespasses were committed was the soil and freehold of the defendant, upon which' issue' was taken and there was a verdict and judgment in favor of the plaintiff, is not evidence that the title to the entire close was in question and adjudged to be in the plaintiff.
    It is evidence that title to the part only of the premises which came in question was found and adjudicated in favor of the plaintiff. AVhat part this was must be proved aliunde.
    
    In a subsequent suit between the same parties or their privies, as to the title to a particular part of the land embraced within the description of the close, the party setting up the former recovery as an estoppel must prove affirmatively that the title as to this particular part was in controversy and passed upon in that suit.
    Exceptions are sufficiently specific where it appears that each offer or request was separately made and passed upon, and each ruling excepted to.
    
      Ejectment, commenced in 1843, to recover possession of about seven acres of land situate in Canajoharie, Montgomery county. The action was tried in 1845, before Willard, circuit judge, when the defendant recovered a verdict. This verdict was set aside and a new trial ordered. (See 5 Denio, 296.) The action was again tried, when the plaintiff recovered. This verdict was also set aside. (See 6 Barb. 515.) On the third trial, in 1849, before Paige, J., the plaintiff proved title to a farm situate in a patent known as the Livingston patent, and bounded on the east by the easterly line of said patent, and gave evidence tending to prove that the seven acres in dispute, and which were possessed by the defendant, were a part of and situate in the northeast corner of said farm, and that the east line of the seven acres was the east line of said Livingston patent, and the west line of a patent known as the Morris patent, which adjoins the Livingston patent on the east; and rested.
    The defendant insisted and gave evidence which he claimed tended to prove that the true, line between the Livingston and Morris patents was west of the line claimed by the plaintiff, and that the seven acres in dispute were or a part thereof was situate in the Morris patent. He also proved that in 1833, one Jackson was the owner of a parcel of land situate in the Morris patent and bounded by its west line and adjoining the land of the plaintiff. He also gave in evidence the record of a judgment in the supreme court, in an action commenced in 1833, in which said Jackson was plaintiff, and Dunckel, the plaintiff in this suit, was defendant. By this record it appeared that the action was in trespass, the declaration alleging that Dunckel broke and entered “ a certain close of Jackson situate in Canajoharie, Montgomery county, and known as part of lots Nos. 4 and 5 in third mile or tier of lots in a division of large lot No. 6 in a patent granted unto Lewis Morris and others, bounded as follows : beginning at a hemlock tree on the southwest corner of lot number one in the second mile or tier of said large lot No. six, and runs thence south seven degrees east nineteen chains 68 links; thence south thirty-three degrees west sixteen chains and 13 links ; thence south sixty-seven degreee east eleven chains and 26 links ; then south thirty-three degrees west 35 chains ; then north sixty-seven degrees west about thirty chains, to the west bounds of said patent; then north twenty-seven degrees fifteen minutes east 35 chains to the place of beginning; containing one hundred and twenty-eight acres, excepting thereout on the north end twenty-three acresthat Dunckel pleaded specially to this declaration that the part of said close mentioned therein and in which the trespasses are therein supposed to have been committed is and at the times when, &c., was the close, soil and freehold of him, said Dunckel, in said town of Canajoharie; wherefore, &c. Jackson replied, taking issue on this plea. By the record it further appeared that .this trespass suit was tried in 1834, and the jury rendered a verdict in favor of Jackson, in the following words, viz: “ that the said close in the said declaration mentioned, in which, $*e., was not, nor was any part thereof the close, soil and freehold of him said Dunckel in manner and form as he said Dunckel hath above in his said plea alleged, and that they find a verdict in favor of said Jackson for six cents damages and six cents costs and that judgment was rendered for the six cents damages and costs of suit. The defendant read in evidence a deed from Jackson to one Roof, dated in 1835, in which the land is described in the same terms as those by which the close in the declaration in the trespass suit is described, and by which Jackson conveyed to Roof about eighty-four acres thereof, being the portion bounded westerly by the west line of the Morris patent. The defendant derived title from Roof. The defendant gave evidence tending to show that the hemlock tree mentioned in the description of the close in the trespass suit and in the deed to Roof was on the line claimed by the defendant to be the true line between the patents, and proved that the description in the declaration in the trespass suit embraced the seven acres sought to be recovered by the plaintiff in this suit. Thereupon the justice holding the circuit ruled and decided that the said record of judgment was prima facie evidence against the plaintiff, Dunckel, of title in Jackson, under whom defendant claimed, to the whole of the land described in the declaration in the trespass suit, and that the burthen of proving that the trespass in question in that suit was not upon the seven acres sought to be recovered in this action, or that title to the same was not in controversy or passed upon by the jury in that suit, rested upon the plaintiff. To this ruling and decision the counsel for the plaintiff excepted.
    The plaintiff then proved that no evidence was given upon the trial of the trespass suit; that in opening that case the plaintiff’s counsel inquired of the defendant’s counsel if the defendant claimed to own any land in the Morris patent; that he replied that he did not, but that he claimed a part of the premises described in the declaration as being in Livingston’s patent. That, thereupon, the judge upon that trial ruled, that the defendant could not give evidence of title to any of the land described in the declaration, as he disclaimed owning any land in the Morris patent; that no proof was given on either side upon that trial, and that the judge directed a verdict for the plaintiff for six cents damages, which was accordingly rendered.
    The plaintiff, on the trial in this suit, further offered to show, that the east line of the two lines in controversy was the true line of the patents; that the deeds under which the plaintiff claims bound him on this east line; that he and those under whom he claimed have occupied the premises up to this east line for over fifty years, and that the occupants of the adjoining lands in Morris’ patent have held to and acknowledged the east line to be the true line. He also claimed that the facts as to which was the true line, with the facts on which the defendant claimed that the plaintiff was estopped, should be submitted to the jury, and also that the question of the location of the seven acres, and whether that location is within the terms of Jackson’s deed and his declaration, were questions of fact for the jury; and he asked that all these questions should be submitted to the jury. The justice, in respect to these offers, stated that he would allow the plaintiff to show that the hemlock tree called for in the declaration in Jackson’s suit and in the deed from Jackson to Roof, as the northwest corner of the Jackson lot, was not on the west line. With this qualification the judge severally denied and overruled each of said offers and requests, and the plaintiff severally excepted to each of the decisions denying and overruling such offers and requests.
    The justice then decided “ that as the evidence (which is undisputed on the point) shows that the seven acres, the premises in question, were embraced within the deeds under which the defendant claims title and in the declaration in the suit of Jackson against Dunckel, the plaintiff, the title to said premises was within the issue in that suit, and that the title to these premises * came directly in question in the trespass suit, and was passed upon by the court and jury in that suit, and that under the testimony the record of the recovery in that suit was conclusive evidence of the defendant’s title to the premises in question, and ha thereupon nonsuited the plaintiff.” To which the plaintiff excepted. The plaintiff moved the court, at a general term, on a bill of exceptions, for a new trial, which was refused, and judgment rendered in favor of the defendant. The plaintiff appealed to this court.
    
      N Hill, Jr., for the appellant.
    
      J. H. Reynolds, for the respondent.
   Johnson, J.

When this case was before the supreme court, (5 Denio, 296,) it appeared that the judge before whom the trial had been had, upon proof by the defendant of the record in the trespass suit, coupled with proof that the premises described in the declaration in that record included the premises claimed by the plaintiff in this suit, ruled that the judgment -was a conclusive bar to the action. The court granted a new trial, being of opinion that it did not appear from the record that the title to the seven acres came necessarily in question in the trespass suit. The new trial resulted in favor of the plaintiff, but in the course of the trial the judge was requested by the defendant to charge the jury, that if they believed from the testimony-that the irespasses for which Jackson prosecuted Dunckel were upon the seven acres in dispute in this suit, then that judgment was a bar. This request was refused. The case then came before the present supreme court, and a new trial was again granted; (6 Barb. 515;) opinions were given by two of the1 judges; Hand, J., holding that the record was prima facie evidence that the title to these premises was in controversy in the trespass suit, after proof aliunde that the premises described in the declaration in that suit included these premises, and also affirming that upon proof that this parcel was the land for trespass upon which that suit was brought and recovery had, the record would be conclusive. Willard, J., rests his opinion upon the latter of these grounds. A new trial was accordingly had, and the bill of exceptions there taken is now before us.

Upon the pleadings in the trespass suit, the substance of the issue was upon the title to the place where the trespasses were committed. The plaintiff was at liberty to prove a trespass any where within the bounds of the close described in the declaration, and the defendant, if unable to make out a title in that place, would fail, although he proved title to every other part of the premises described. This position was examined upon the authorities in the case in 5 Denio, 296, and is not denied in 6 Barbour, before cited, and is beyond question. (Rich v. Rich, 16 Wend. 663; King v. Dunn, 21 Id. 253; Bassett v. Mitchell, 2 B. & Ad. 99; Smith v. Royston, 8 M. & W. 381.)

The actual verdict is in accordance with this view. It is not general, that no part of the close described in the declaration is the close, soil and freehold of the defendant, but is limited to the place where the trespass was committed, by its express terms. Upon this record, looking at it with these views of the rights of the parties upon the trial, I do not see how it is possible to say that the title to any particular part of the premises described in the declaration came in question. All we can see upon its face is, that whatever part of the premises was brought into question, upon the trial, was found to be not the property of Dunckel. Looking at the record alone, it is not even possible to say that the premises described in it include any part of the lands for which this ejectment is brought. Upon its face it is possible, in legal contemplation, to see that the title to the premises claimed in this suit may have come in question. And when it was shown aliunde upon the trial that the premises described in the declaration in the trespass suit did, upon the ground, include those for which this suit was brought, all that was thus established was what was apparently true upon the face of the record, that the title to these seven acres may have come in question. It is not upon a possibility or probability, however strong, that an estoppel can rest. The matter of the estoppel must actually have come in question and been determined. The burthen of showing that it did come in question, must fall upon the party who seeks the benefit of the estoppel; for it is a part and a necessary part of his case.

This doctrine does not trench upon that which was said by the court in Seddon v. Tutop, (6 T. R. 607,) Bagot v. Williams, (3 B. & C. 235,) and Phillips v. Berick, (16 John. 136.) In each of those cases the defense was a former recovery for the same cause of action, and in each it was said, in substance, that if the cause of action in the former suit was apparently the same as in the second, the burthen was upon the plaintiff to show the contrary. Where a plaintiff seeks to recover that which he has apparently already recovered, or had an opportunity to recover, the burthen may well be upon him to show, as Lord Kenyon said in Seddon v. Tutop, beyond all controversy, that the second is a different cause of action from the first. In the case before us the record does not show an apparent identity of the close in which the trespass was committed and the premises sought to be recovered in this suit, for the record does not inform us where in the 105 acres included in it, the trespass was committed. See the remarks of Beardsley, J., in Dunkcel v. Wiles, (5 Denio, supra ;) of Lord Tenterden, in Bassett v. Mitchell; of Alderson B. in Smith v. Royston ; of Bronson, J., in Young v. Rummel, (2 Hill, 481;) and Outram v. Morewood, (3 East, 354, 5.)

But if the court at the trial was right in holding that the record was prima facie evidence against the plaintiff in this case that the title to these premises came in question on the trial of the trespass suit, the evidence subsequently given overthrew the presumption. It appeared that upon that trial no evidence was given on either side, and a verdict was directed for the plaintiff by the judge. That verdict was precisely such as the jury was bound to pronounce, in the absence of evidence. A technical trespass, somewhere within the close described in the declararation, was admitted by the plea; the burthen of making out title to the place in which, &c., was on the defendant. In the absence of evidence, the verdict therefore was against the defendant upon his plea, and the plaintiff had his nominal damages assessed for the technical trespass, which was admitted upon the record. All this was strictly correct. (Rich v. Rich, supra.) All this is just as conclusive against the defendant in the trespass suit in respect to the recovery in that suit, as if the recovery had been had upon a hard litigation at the trial. But when the record comes to be used as an estoppel upon the question of title in this suit, and it is shown that the trespass was not located any where, all that it decides is, that the part of the 105 acres described in the declaration, upon which the technical trespasses are confessed to be done, was not the defendant’s property. Neither party can affirm that the verdict related to any particular part of the property described, and it cannot therefore be available as an estoppel in respect to these seven acres of land. Unless this be so, the verdict is conclusive upon the title to the whole 105 acres. (Lawrence v. Hunt, 10 Wend. 80; and Jackson v. Wood, 8 Wend. 9.)

At the close of the evidence the plaintiff asked, that the question of the location of the seven acres, and whether that location was within the terms of Jackson’s deed to Roof and his declaration, should be submitted to the jury. In respect to this request, the first question is whether the exception is sufficiently definite to raise the point. On the part of the defendant, it is contended to come within the rule stated in Jones v. Osgood, (2 Seld. 233.) We do not so regard it. The bill of exceptions shows by express statement that each of the offers and requests was severally denied and overruled, and that the plaintiff severally excepted to each of those decisions. It is no objection to the statement that it is all contained in one sentence, so long as it shows distinctly, as this statement does, that each offer or request was separately made and ruled upon, and each ruling excepted to. Looking at the description of the lands in the declaration in the trespass suit, it will be observed that the west line of the Morris patent forms the starting point from which runs a line to the hemlock tree, the place of beginning; and that this line is the western boundary of the lands described in Jackson’s declaration. Whether a line so run includes the whole of the premises sought to be recovered in this suit, or only a small portion on the east side, depends upon the question whether the west boundary of Morris’ patent is to be located at the most westerly of the two disputed patent lines. If it is, then the seven acres were within the description in Jackson’s declaration. If, on the other hand, the east line was the true line, then, at most, but a small part of the seven acres was included in the declaration in the trespass suit. Upon the question which of these lines was the true one, there was conflicting evidence, which should have been submitted to the jury.

There must be a new trial, costs to abide the event.

W. F. Allen, J.

The plea of liberum tenementum only put in issue the title to that part of the close described in the declaration in the action for trespass quare clausum fregit, upon which the alleged wrongful act was committed. Neither party was called upon in that action to show title to the whole close described in the pleadings, but it was enough to show title to the part in "which the trespass was committed. The allegation of title was divisible. The plea admitted a trespass somewhere in the close, but not in every part of it, and upon showing title to any part, it would have devolved upon the plaintiff to prove that the trespass, for which he claimed to recover, was committed in some other part of the .close to which the defendant had not title, and upon showing this, he would have entitled himself to recover. The law would have shifted the burthen of proof from one to the other party, by allowing the parties to apply their evidence according to the justice and equity of the case. (Rich v. Rich, 16 Wend. 663; Smith v. Royston, 8 M. & W. 381; Tapley v. Wainwright, 5 B. & Ad. 395; Bassett v. Mitchell, 2 id. 99; King v. Dunn, 21 Wend. 253.)

The substance of the issue only was to be proved, and that was, whether the spot on which the alleged wrongful act was done, the locus in quo, belonged to the one party or the other. Patterson, J., in Bassett v. Mitchell, says, “ The description given in the declaration is merely for the purpose of identifying the close, which is the subject of the action. When the trespasses are stated, the words in the said close’ do not mean every part of the close, and the plea must be understood in an equally confined sense.”

The defendant in this suit, seeking to show title in himself to the premises in dispute by means of the estoppel created by the recovery and judgment in the former action, was bound to show affirmatively that the title to those premises was passed upon by the court and jury in that action. Had it been apparently necessary to pass upon that question before the judgment could have been given, the record would have been prima facie evidence for the defendant, and would have been conclusive as an estoppel against the plaintiff, unless evidence had been given on his part to contradict and overcome this presumption. But the issue upon the title relating only to the particular spot in which the trespass is proved to have been- committed, without evidence of that location, the record cannot conclude either party; and the onus is upon him who seeks to avail himself of the judgment, when sufficient does not appear upon the face of .the record, to show by proof aliunde that the title sought to be litigated in this action, was directly in controversy in the former. The declaration and plea being general and relating to the whole close set out by abuttals in the declaration, the only matter in controversy, or which could have been tried and decided, was the title to the precise locus in quo of the trespass. The affirmative of this issue upon the trial of this action was with the defendant, who alleged title and sought to establish it by the former trial and judgment; and without reference to the general rule that estoppels are not favored in the law, and that a party alleging them can take nothing by intendment, argument or inference, which is well established, he was bound to give some evidence of title, by showing that the title to the premises in dispute had been adjudged to be in him or those under whom he claimed by a judgment binding upon the plaintiff as a party or privy. The circuit judge, after the defendant had put in evidence the record of judgment in the action of trespass, and given evidence tending to show, that the premises claimed by the plaintiff in this action were included within the boundaries of the close described in the declaration in that action, ruled and decided that the judgment was f rima facie evidence of title in Jackson, under whom the defendant derived his title to the whole lot, and that the burthen of proving that trespass on the seven acres in question, or that the title to the same, was not in controversy on the trial of that suit, or passed upon by the jury, lay upon the plaintiff.

The law says that the plaintiff in trespass quare clausum fregit can recover, upon showing title to any part of the close described in the declaration, if the act complained of was done upon that part; that the allegation of title is divisible, and the substance of the issue, no matter how comprehensive the claim may be, is as to the title to the precise spot in which the trespass was committed. It follows, then, that the title to the whole close was not actually or presumptively in issue. Ho legal presumption can exist, that the finding of the jury was beyond or more comprehensive than the issue, and certainly no presumption should be indulged in favor of an estoppel which is designed to conclude a party by excluding evidence of the truth. It was for the defendant to show, by evidence, in what part of the close the trespass was committed, and thus apply the issue and judgment to the premises now in controversy., Oowen, J., in Rich v. Rich, speaking of the effect of a judgment in an action of trespass in which a plea of liberum tenementum had been interposed, quotes Lord Tenterden in Bassett v. Mitchell, and says : “ It is said that the record, under these circumstances, will not be decisive evidence in a future action; nor will it as to the whole land in question; but either party may show, by evidence, what part it was that was affected by the result of the cause;” and quotes with approbation the remarks of Littledale, J., in the same case, who says, “ The record would be evidence of a former decision as to part of the place in dispute, and it must be shown by proof which part that was.” If, as I think is clear upon principle and authority, the judgment is only evidence that the title to some part of the premises in dispute in the trespass suit is in the defendant, it was for him to locate that part by proof, and show that it embraced the premises in dispute in this action. The opinion of Beardsley, J., in this case reported, (5 Denio, 296,) is entirely satisfactory and conclusive upon this point. The subsequent judgment of the supreme court sitting in the fourth district, (6 Barb. 515,) is not in conflict with the opinion of the court before given, as it was placed by Judge Willard, with whom Paige, J., concurred, upon the ground that evidence had been given tending to show that the trespass for which the recovery had been suffered, was upon the premises now in dispute, and which should have been submitted to the. jury.' Willard, J., says, “ I am not aware that any thing has been said hitherto which is in conflict with the decision of the supreme court, when they sent this cause down to a new trial.” I think the learned judge at the circuit must have misapprehended the effect of the last decision, by assuming that it was in conflict with the former judgment in the case. The reasoning of Judge Hand does not appear to have been adopted by his associates. The judgment of the supreme court must be reversed and a new trial granted, costs to abide event.

Denio, J., having been counsel in the case, and Rugóles, J., not having heard the argument, took no part in the decision; all the other judges concurred in the foregoing opinions.

Judgment accordingly.  