
    
      Daniel Farmer vs. John S. Miller and others.
    
    In trespass to try title, if the plaintiff has a verdict for part of the land, and enters up judgment thereon, he cannot, within two years, bring a second action for the residue, which he failed to recover. Such a case is not within the 1st sec. of the Act of 1744.
    
      Before Frost, J. at Lancaster, Spring Term, 1852.
    The report of his Honor, the presiding Judge, is as follows.
    “ The plaintiff claimed under a grant to John Marshall, in 1789. Benjamin Hale, in 1793, conveyed to Thomas Farmer 300 acres of the Marshall grant, one of the boundaries of which tract was the line of Francis Bettis; and the plaintiff derived title immediately from the devisees of Thomas Marshall. The defendants claimed under a grant to Patrick Doyle, in 1757, for 550 acres. They produced in evidence deeds of conveyance of the granted land from Garrett' Doyle to Thomas Chadwiche, in 1775; from Chadwiche to Francis Bettis, also in 1775; deeds of release from persons styling themselves heirs at law of Francis Bettis, to Samuel Hilton, dated in 1815 and 1817; from Samuel Hilton to William Hilton, in 1819, and from the sheriff of Lancaster district to John S. Miller, dated November, 1849, under a judgment against William Hilton. The defendants proved possession in Samuel and William Hilton from the date of their deeds until three or four years ago, when William Hilton died. A grant to one Crawford ran into the Doyle grant, and the grant of Marshall also, and the lines of these two grants, within the Doyle grant, were nearly co-incident. The plaintiff claimed to the line of the Crawford grant, and much evidence was produced on both sides on the issue of an adverse possession, by those under whom the plaintiff clipinsed; t&^lfg^ries of the Crawford grant. The defendants, .ai'ia.st,Cp%3it^94^%evi-dence the recoid of a recovery in an action, of .trespass .t® try title, by Dolly Farmer against Benjamiff'iBJdKéff#i'dffffli’a%ear 1829. Thomas Farmer had devised ttfó jpncj, purchased Jjrom Benjamin Hale, to his widow, Dolly Farmer,'•-Íiítth^cer-tified plat of the survey made in that cA§ep4b£.}^aííáf;c>f the plaintiff is represented as excluding the whole '"of the Doyle grant, and pursuing its line as a boundary. The defendants also produced in evidence the record of a verdict and judgment, rendered in April, 1848, in an action of' trespass to try title, in which Daniel Farmer was the plaintiff and William Hilton was defendant. The certified plat of the survey in that case represented the plaintiff’s claim precisely as it is represented in the plat of the survey made in this case. Lowry, who was the surveyor and a witness in both cases, testified that the trespass, the subject of that action, was at or near the locality of the trespass in this case; that the plaintiff claimed, in the first suit, against William Hilton, the same land claimed in this second suit; and that in the first suit, the principal subject of dispute was the location of the Doyle grant. That was proved, in this second action, so fully by the plaintiff’s and defendants’ surveyors, that no question was made about it. In the first action, the jury found a verdict for the plaintiff for a small part of the land within what the defendant claimed to be the location of the Doyle grant.
    “ When this record was offered in evidence, enquiry was made of the defendants’ attorney, whether he relied on it as an estoppel to the plaintiff’s recovery, and the reply was, that such would be insisted on, as the effect of the former recovery. The attorney for the plaintiff was informed, the jury would be instructed, that when a plaintiff brings an action of trespass to try title for a parcel of land, and recovers a portion of the land sued for, and afterwards brings a second action to recover the residue of the same tract, that the defendant may interpose the former recovery in bar of the second suit; that by the Act of 1712, the plaintiff was limited to one action of trespass to try title and the Act of 1744 gives to the plaintiff a second action, only in case verdict is rendered against the plaintiff, in the first, or he be nonsuited, &c. The plaintiff thereupon took a nonsuit.”
    The plaintiff appealed, and now moved that the nonsuit be set aside, on the following grounds.
    1. Because the verdict in the former case of Daniel Farmer against William Hilton, according to the Act of the Legislature, allowing a second action within two years after the determination of the first action, was no legal bar to this suit.
    2. Because the whole of the evidence in the case on the part of the plaintiff and the defendants, a part of the defendants’ evidence being the verdict in the former case, having been fully submitted to the jury, his Honor had not the power to withdraw the case from the jury, but should have submitted the case to them for their decision.
    
      Clinton, Thomson, for the motion,
    cited 2 Hill, 415; 1 Green. Ev. 593; 3 Stat. 612; 9 Bac. Abr. Statute, 238 et seq.
    
    
      Williams, Dawkins, contra,
    cited 1 Rich. 478 ; 2 Rich. 560; 2 Smith L. C. 551; 12 Verm. 192 ; Rice, 72.
   The opinion of the Court was delivered by

O’Neall, J.

The single ground of appeal, in this case, presents the question, whether after a verdict for the plaintiff, in an action of trespass to try title, for a part of the land, on which he enters up judgment, he can, within two years, bring a second action for the residue, which he failed to recover ?

I think he cannot. Such an opinion is very distinctly expressed by brother Frost, in the case of Dyson vs. Leek, (5 Strob. 141). It is however true, that that action was not brought until after two years, and his argument is mainly addressed to the point, that a verdict for the plaintiff for part is equivalent to a verdict for the defendant, and that the judgment for the plaintiff for the part so found is a judgment for the defendant for the residue: and does not conclude the question now made.

By the 4th paragraph of the Act of 1712, (2 Stat. 584,) a plaintiff in ejectment failing to recover was concluded, and could not bring a second action. By the 1st sect. of the Act of 1744, (3 Stat. 612,) this law was so amended as to permit a plaintiff, where, “ verdict and judgment shall pass against” him, or he suffers a nonsuit or discontinuance or any other ways let fall” his action, to bring a second action.

The single enquiry is, have any of the contingencies mentioned in the Act happened ? Clearly not. The plaintiff has had a verdict, has entered up his judgment, and has, therefore, legally recovered a part of the land then and now in dispute from the grantor of the defendants. He has, therefore, under this Act, no right to a second action. But it is said, in ejectment, before the Act of 1712, he could bring suits ad libitum: and that Act being, like this, only a restriction to one action in the same contingencies, it follows, that not being within its terms, the party may sue again. Notwithstanding it may be true, that in ejectment, owing to its fictions, there could be no limit to successive actions, yet it cannot help the plaintiff. For although the action of trespass to try title is substituted for the action of ejectment, yet it does not follow that all the consequences of the former attach to the latter. The difference in form and parties makes an essential difference in the particular before us. There is nothing in the law which would prevent a recovery in tres-ass to try title from concluding all parties and privies in estate, save the provision in the Act of 1744 now before us, and even that has been held not to help a defendant.

But one consequence satisfies me, that the plaintiff, recovering a part of the land, cannot have a second writ. For if he could, in the second case the defendant might recover, and, then, what would become of the part previously recovered ?

The second judgment would be a reversal of the first: or the two would stand conflicting with each other. Such results can not be allowed : and hence, therefore, the plaintiff ought to be concluded by his former recovery.

It is not necessary to hold that the former recovery is an estoppel: it is sufficient to say, that, as evidence, it concludes the plaintiff from a recovery.

The motion is dismissed.

Fiiost, Withers and Whitner, JJ. concuned.

Evans and Wardlaw, JJ. dissented.

Motion dismissed.  