
    
      Doe on the demise of WILLIAM STOKES v. JACOB FRALEY.
    Where the plaintiff brought an action of trespass, q. c. £, to which the defendant pleaded general issue, liberum tenemenium, and which were found for the plaintiff, it was Held, in an action of ejectment, brought by the same plaintiff against the same defendant, for the same land, that the former finding did not estop the defendant from denying the plaintiff’s title, for that title was not put in issue by the pleadings, but only the defendant’s.
    AotioN of ejeotMENt, tried before Bailey, J., at the last Superior Court of Bowan.
    CASE AGREED.
    The lessor of the plaintiff and defendant owned adjoining tracts of land, and the part in dispute is a slip, in the form of an acute angled triangle, lying along the division line between them. At Spring Term, 1856, of Eowan Superior Court, an action of trespass quare clausum fregit was tried, in which William Stokes was plaintiff and Jacob Fraley was defendant, in which the plaintiff declared for a trespass committed by the defendant, upon the slip of land, now sued for. The pleas in which action, were, general issue and liberum tenementum.. It is admitted that proof and the title of both parties were fully gone into, and were substantially the same as those relied on in the present action; in which said action, a verdict was rendered for the plaintiff, sixpence damages were -assessed, and judgment given for the plaintiff. In this action, it is contended that the verdict and judgment in the former suit, estop the defendant from denying the plainsiff’s title. It is agreed, that if the Court should be of opinion with the plaintiff on this point, judgment shall be entered for the plaintiff for sixpence damages, otherwise, that a judgment shall be entered for the defendant.
    The Court, being of opinion with the plaintiff, on the case agreed, gave judgment accordingly.
    Defendant appealed.
    
      Osborne and Hoyden, for the plaintiff.
    
      Jones and Barrmger, for the defendant.
   Pearson, J.

In the action of trespass, q. c. f., the defendant pleaded the “ general issue,” and also pleaded specially “ liberum tenementum ; to this plea, the plaintiff replied, by way of traverse, to wit, that the loous in guo was not the freehold of the defendant. Upon this issue, the question of title was fully gone into, and both issues were found in favor of the lessor of the plaintiff. The question is : does this establish his title by force of an estoppel ?

The effect of the finding on the general issue was, that the plaintiff was in possession, and was entitled to recover against a wrong-doer; and further, that the defendant had committed the trespass complained of, and was liable to the plaintiff’s action, unless he (the defendant) had title to the land.

The effect of the finding on the issue joined on the special plea, was, that the defendant had not title to the land; but non oonstat, that the lessor of the plaintiff had title ; it may well be that neither had title ; and although the possession of the lessor of the plaintiff, was sufficient to enable him to recover in the action of trespass, q. c. f., against the defendant, who was a wrong-doer, that will not enable him to recover in the action of ejectment, because, in that action, he must recover upon the strength of his own title, and not the weakness of his adversary’s. He can derive no aid from the record of recovery in the former action, either by estoppel or otherwise, for Ms title was not put in issue $ the title of the defendant was alone put in issue.

In Rogers v. Ratcliff, 3 Jones’ Rep. 225, the finding was for the defendant, and if he had relied alone on his special plea, there would hare been an estoppel in respect to his title. The decision in that case, does not conflict with our opinion in this ; and both tend to a proper explication of the doctrine of estoppel. There is error. Judgment reversed, and a judgment for the defendant on the case agreed.

Pee Cubtaji, Judgment reversed.  