
    Asa Adams versus Thomas Barnes.
    in an action by a mortgagee for possession of the mortgaged premises, the mortgagor defended on the ground of usury; but failing in the defence, the mortgagee had judgment. Afterwards the mortgagor conveys his right to a third person, who brings his writ of entry against the mortgagee, ana would support his action by proof of the usury. It was holden that he was estopped by the former judgment; and that the mortgagee might avail himself of the estoppel without pleading it.
    This was a writ of entry swr disseisin, brought to recover certain lands in Charlestown, the demandant counting upon his own seisin and upon a disseisin by the tenant. On the trial, which was ha.d on the general issue, before Wilde, J., at the sittings here after the last October term, the following facts were disclosed :—
    The tenant Barnes, on the 7th of May, 1817, lent to one David, S. Ingersoll 2000 dollars, on a mortgage of the demanded premises. On the 3d of August, 1818, a suit was brought by Barnes for the recovery of the possession * of the mort- [ * 366 J gaged premises. In that suit Ingersoll appeared, and put in a plea of usury, offering to support the plea by his own oath, according to the statute. But Barnes, on the Court’s inquiring of him whether he was prepared to negative the said plea, and to swear that he had not, directly or indirectly, taken or received more than after the rate of six per cent, on the loan, did swear to that effect; whereupon the Court awarded him the usual judgment for possession. As soon afterwards as his judgment entitled him, Barnes received from the sheriff seisin and possession of the mortgaged premises.
    Afterwards, on the 9th of December, Ingersoll, for the considera tian of 50 dollars, quitclaimed, sold and conveyed by deed all his ~ight, title, and interest, in the premises, to the present demandant Adams, who was well acquainted with all the preceding facts, and on the 13th of December, 1819, brought the present action, for the recovery of the premises.
    The demandant offered evidence to prove usury on the original contract between Ingersoll and Barnes, which was objected to by the tenant. Ingersoll, also, was offered as a witness to prove the usury, and was objected to; but both the objections were overruled.
    The tenant then contended that the former judgment was an estoppel to the demandant, and that no evidence ought to be admitted, to try the question of usury in the present action.
    The judge overruled this objection, reserving the question for the Court. The trial proceeded, and the jury found a verdict for the demandant; which was taken, subject to the opinion of the Court upon the facts and objections above stated; the tenant moving for a new trial.
    
      W. Austin, for the tenant.
    After Ingersoll had lost the land by judgment of law, he was foreclosed. He had nothing left in him but the right in equity to redeem. He could no longer question the right of the mortgagee. He * could convey [ * 367 ] to Adams no more than he then had in the land, which was but the equity of redemption .
    
      
      Ingersoll was not a competent witness, being called to discredit an instrument to which he was a party .
    
      Keyes and S. D. Parker, for the demandant.
    The judgment against Ingersoll is no estoppel to Adams. The question in this action is, whether the demandant has a good and sufficient title, under his conveyance from Ingersoll. That conveyance passed all Ingersoll’s interest and estate in the premises; and if the mortgage to Barnes was void, then more than an equity of redemption passed. The estate passed unencumbered. If the demandant, then, can show that conveyance to be void, for usury or any other cause, he has a good right to judgment for the land . The tenant should have pleaded the judgment, if he relied on it as an estoppel. If the judgment in the former action could be given in evidence without pleading, the demandant might well impeach it by any evidence, as perjury on the first trial.
    
      
       9 Mass. Rep. 48, Bearce vs. Barstow.—12 Mass. Rep. 268, Thatcher & Al. Ex’rs vs. Gammon.—13 Mass. Rep. 443, Flint vs. Sheldon.—Ibid, 515, Green vs. Kemp.—1 Johns. Cases, 436.
    
    
      
       11 Mass. Rep. 498.—14 Mass. Rep. 245.
    
    
      
       3 East, 346, Outram vs. Morewood.—4 Bac. Abr. 106.—5 D. & E. 66, Rex vs. Mayor of York.
      
    
   Jackson, J.,

delivered the opinion of the Court.

Two questions have been raised on the point reserved by the judge on the trial. 1st. Whether the former judgment was an estoppel to the demandant; and, 2dly, If so, whether the tenant could avail himself of it, without pleading it. We are of opinion with the tenant on both questions.

As to the first point, it is clear that the judgment estopped Ingersoll, the mortgagor. Barnes had brought his action to recover the land now in controversy, claiming it by virtue of the mortgage Ingersoll made a defence, which, if proved, would have avoided the mortgage. But the defence was not maintained, and Barnes’s title was established by that judgment; and Ingersoll was thereby concluded from disputing that title again upon the same ground. We think it equally clear that the judgment estops the demandant. It is such an estoppel as runs with the land, and extends to all who are privies in estate to either of the parties to that judgment. A judgment, which affects directly the estate and interest [ * 368 ] in the land, and * binds the right of the parties, is at least as effectual as a release or confirmation, by one party to the other. Such an estoppel makes part of the title to the land, and extends to all who claim under either of the parties to it .

Estoppels are said to be odious; but when they constitute part of the assurance and title to the land, as in the present case, they are founded in the strongest equity and justice, and are entitled to the most favorable consideration. By the former judgment, Ingersoll had lost his title to this land, so far as it was affected by the mortgage; and Barnes had acquired a right, which was indefeasible as between him and Ingersoll, to hold possession of the land, until his debt was paid. It would then be highly inequitable, if Ingersoll could convey to a stranger the right to bring Barnes’s title again into doubt and controversy. Ingersoll, also, after that judgment, had no estate left in him, excepting the right of redemption ; and his grantee could not, in justice or equity, claim any greater or better estate.

The estoppel, in the present case, is also founded on those prin ciples of law, which are intended to repress litigation, and to prevent a multiplicity of suits. If the demandant could now contest Barnes’s title under that mortgage, it must be that Ingersoll had assigned to him a mere right of action; which is prohibited by law. Again, if the demandant could purchase that right of action, he might also sell it; and, therefore, if he should try this action on its merits, and fail to recover, he might, on the same principle, assign the right to another, who should bring a new action; and that assignee, in the like event, might assign it to a third; and there would be no end to the litigation, so long as an individual could be found, who would be willing to risk the costs of a suit, for the chance of recovering the land.

As to the second question, it is settled that an estoppel like the present, which affects the title and estate, shall in general have the same effect when offered in evidence, as when specially pleaded. The exception is, when the point * in question [ * 369 ] is presented by the pleadings, and is alleged or denied as the case may be, and the other party, instead of pleading the estoppel, puts the question of fact to the jury. The case before cited of Trevivan vs. Lawrence presents an example of the general rule, and of the exception; and the doctrine was recognized by this Court in the case of Howard vs. Mitchell , and in that of the Commonwealth vs. Pejepscut Proprietors . The case at bar is clearly not within the exception. The declaration contains no inti motion of the origin of the demandant’s title; and it would have been irregular, if it had. The demandant counts on his own seisin in fee, and alleges a disseisin by the tenant. The latter could not know, from such a declaration, that the demandant’s title was derived from Ingersoll. He was not bound, nor would it even be safe for him to rely merely on the estoppel to Ingersoll and his assigns Under such a declaration and the general issue, the demandant was at liberty to show a right of possession in himself by any title, ana any evidence in his power; and the tenant might, in like manner, rebut the demandant’s evidence, and show a right of entry or of possession in himself. If an estoppel, by judgment or otherwise, made part of the tenant’s title, it was no more necessary.for him to plead it, than it would have been to set forth in a special plea all his title deeds, and every other part of his evidence.

A case might have arisen out of this transaction, which would have required the estoppel to be specially pleaded. Suppose that in that former suit the mortgage had been proved to be usurious, and Ingersoll had accordingly recovered judgment; this would have been an estoppel to Barnes, and all persons claiming under him. If, then, he had assigned the mortgage to a stranger, and the assignee had brought a new suit on it, the assignee ought regularly to set forth in his declaration the mortgage to Barnes, and the assign ment of it to himself. In such a case Ingersoll would [ * 370 ] know that the plaintiff had no title, but as assignee *of Barnes. He might, therefore, plead the usury, with a verification as at common law; and if it was denied by the plaintiff, Ingersoll might rejoin the former judgment by way of estoppel. If, instead of such a rejoinder, he should take issue on the replication, or if he should plead the usury in the manner provided by the statute, offering to prove it by his own oath, he would in either case waive, and lose the advantage of, the estoppel .

The rules of pleading, and of evidence, that we have been considering, do not prevent the tenant, in any real action, from setting forth his title in a plea in bar, giving color, when he shall find it useful. In the case at bar, he might, perhaps, have set forth, in such a plea, the former seisin of Ingersoll, the mortgage to himself, and the assignment by Ingersoll to Adams; and if the demandant had replied that the mortgage was usurious, Barnes might have rejoined the former judgment by way of estoppel. But the only reason of giving color is, that the plea would otherwise amount to the general issue; and of course all the material facts in such a plea might be given in evidence under the general issue. A defendant is, therefore, never required to plead in that manner, and shall not lose any material advantage by omitting to do it.

The verdict is set aside, and

A new trial ordered. 
      
       1 Salk. 276, Trevivan vs. Lawrence.—3 Salk. 151, S. C. Co. Lit. 227.—4 Co. Rep. 53.
     
      
       14 Mass. Rep. 241.
     
      
       10 Mass. Rep. 155.
     
      
      
        [Vooght vs. Winch, 2 B. & A. 662.—Stafford vs. dark, 9 Moore, 724.—2 Bingh 377.—1 Car. & P. 24—403.—Ed.]
     