
    Allen Jones v. Hugh Muldrow, et al.
    
    Defendant, in trespass claimed as tenant of S., and adduced evidence to liis tenancy and to S.’s title; but, was proved to have entered as plaintiff’s tenant, and was, therefore, evicted. This did not conclude him, after having regained possession, from holding under the title of S.
    A point on which evidence has been given, on the trial, but on which, in consequence of what afterwards appears, the party is not permitted to rely, is not concluded by the verdict.
    Where it did not fully appear, by the record, what was the precise issue submitted to the jury, other evidence was admitted for the purpose of ascertaining the scope of their verdict.
    Before O’Neall, J., at Darlington, Spring Term, 1840.
    
      Trespass quare clausum fregit. The close was, originally, the property of one Stephenson. As such, it was sold, by the Sheriff of Darlington, Richard Ingram, to John Ingram: by John, it was conveyed to Bryant Ingram; by him, to Richard Ingram, and, by him, to Pleasant R. Gee, who sold to the defendant, Muldrow, executed a bond for titles, and died. The heirs of Gee, for Muldrow, brought suit, (by a previous action, Gee v. Jones, Rice R. 64,) against this plaintiff, Jones, and his son James, for the recovery of the land. Jones’s defence was, that he was in possession under Stephenson, and that the sheriff’s sale was fraudulent; but it was proved by the plaintiffs in that case, that J ones had gone into possession as the tenant of Richard Ingram, Jones was ejected by a writ of habere facias possessionem, and Muldrow was put in possession.
    About a year afterwards, while Muldrow’s tenant was removing from the land, Jones entered and retained possession under Stephenson.
    The defendants now contended that the plaintiff was concluded by the former recovery, and could not set up Stephenson’s title. But the Court thought that Stephenson’s title had not been legally in issue on that trial; for Jones had been estopped, by his tenancy to Ingram, from relying on it.
    
      
      
        Gee v. Jones, Rice, 64. An.
      
    
   Curia, per Butler, J.

The true question, in this case, is, was Jones barred by the recovery against him, in the case of Gee v. Jones, from availing himself of Stephenson’s title at any subsequent time, either by action, or in defence. And this question depends, not only on what was decided in that case, but upon whether it be allowable to inquire into and ascertain by evidence, what was the issue which was submitted to the jury, and which necessarily fell within the scope of their verdict. For, if the verdict of the jury was but the judgment of the law upon a point that superseded all others, and which must have precluded the consideration of Stephenson’s title, then the case would be relieved of some of the embarrassing circumstances that seem to attend it.

There was nothing apparent on the record of Gee v. Jones, that could be pleaded, or used by the present defendants by way of estoppel to Jones’s rights under Stephenson’s title. An estoppel precludes parties and privies from contending to the contrary of that point, or matter of fact which, having been once distinctly put in issue by them, or by those with whom they are privy in estate, or law, has been, on such issue joined, solemnly found against them. It is not the recovery, but the matter alleged by the party, and upon which the recovery proceeds, that creates the estoppel. (Outram v. Morewood, 3 East. R. 355.) Now, if Jones had alleged in his pleadings, in the case of Gee against himself, that.he relied on Stephenson’s title, then the verdict would have been an estoppel to him as to the same title. No such thing appears on that record, and the recovery may or may not be a bar, according to circumstances.

If Stephenson’s title, which, it seems, was given in evidence by Jones on that trial, either Avas, in fact, or could have been passed on by the jury, it might be a bar as to the parties to the record and their privies. This brings up the question, is it competent to go into that trial to ascertain what were the issues submitted to the jury, and upon which they must have decided %

In the case of Seddon v. Tutop, (Esp. R. 401,) it was decided that, where there has been judgment by default, in an action on a bill of exchange, and, also, for goods sold and delivered, and the plaintiff, by mistake, takes a verdict for but one of these demands, he may afterwards maintain an action for the other. Lord Kenyon, Avho delivered the opinion of the Court, says, “ where a man brings an action, it must be presumed it is for the whole of his demand, but it is not conclusive ; he may show that, in point of fact, he did, in such action, go to recover part of the demand only. He may also show that he did not, under the first action before the jury, go into any evidence of that demand which is the subject of the second action; for, if he did, and failed, it would be conclusive.” According to this, Avas it not competent for the plaintiff, Jones, to go into the evidence, to show what Avere the issues which Avere submitted to the jury on the former trial 1 I think he was properly allowed to go into such evidence.

This does not relieve us from another serious difficulty, which is, that it did not appear that Stephenson’s title was in evidence on the former trial; and, if the jury could have passed on it, it fell within the scope of their verdict, and was concluded against this plaintiff. Upon examination, it will he found that the jury was not required to decide on that matter. Their verdict must he referred to a matter on which the law, itself, had pronounced its judgment independently of all other questions involved: viz. that Jones, having gone into possession of the land, as the tenant of Richard Ingram, could not claim against his landlord by any title which he might have acquired. The circuit Judge reports that it was proved., on the former trial, that Jones had been put in possession of the land as the tenant of Richard Ingram. Whilst he occupied that relation, it is evident he could not acquire and he clothed with any other title, to defeat that of his landlord. It was not competent for him to he invested with Stephenson’s title until he was either evicted, or had gone out himself, voluntarily. From the report, we must assume that the question was not submitted to the jury, whether Jones was tenant of Ingram; but that it went to a jury, as a conceded or established fact, that he was so. And, for the purpose of presenting the case as I wish to consider it, suppose that when Jones was sued by Gee, he had set out in a plea that, since he went on the land, he had acquired Stephenson’s title, and that he was, by virtue thereof, the true owner of the land; and the plaintiff had replied that such plea should not avail him, for that, by a written lease, Jones had gone on the land as tenant of the plaintiff, or his lessee ; and that Jones had demurred to this replication. The judgment of the Court would have been, to overrule the demurrer; the effect of which would have been to evict Jones on account of his tenancy, and not to touch Stephenson’s title, which was admitted by the demurrer. The case having gone to the jury on this precise state of facts, their verdict embraced nothing more than the conclusion of law. Not that the title set out, or given in evidence, was bad, but that Jones could not avail himself of it. The validity of the title, and Jones’s ability to use it, are different things. Technically and strictly speaking, Jones was not availably and beneficially invested with Stephenson’s title, until after his eviction, and therefore subsequent to the former trial.

See as to the effect of the verdict in the former caseBech v. Bridges, 11 Rich. 90; Samuel v. Dunhins, Col., May, 1859, 11 Rich.; Harp. 870. An.

Dargan and Sims, for the motion;

Law, contra.

I think, therefore, that Jones was not precluded, by any thing in the former recovery, from protecting himself under Stephenson’s title, which it seems, was never divested by the basely fraudulent attempts to destroy it.

But it is said that, when Jones took Stephenson’s title, or rather authority to enter under it, he should have gone out and have brought his action, either in his own or in Stephenson’s name, and that not having done so, he was precluded from all right to resort to it at any subsequent time, without offending the maxim nemo debet bis vexari. The course indicated may have been desirable, but I do not think that a man’s mistake, or forbearance in the assertion or exercise of his rights, should always destroy, or put them in jeopardy, so that he cannot ultimately enjoy them. After Jones’s tenancy had been dissolved by his being put out of the land, he had a right to re-enter under the true legal title, unless it had been previously adjudicated; which we think had not been done. His entry on and possession of the land being lawful, the plaintiff has shown his right to maintain this action. The verdict must therefore stand, and a new trial is refused.

Gantt, Richardson, Eyans, and Earle, JJ., concurred.  