Briggs v. Wells , 12 Barb. 567 ( 1851 )

Johnson, J.

The plaintiff is clearly entitled to recover in this action according to the allegations in her declaration, unless she is concluded by the record of a former -recovery and judgment in favor of the defendant, for these same premises, in a former action, in which the plaintiff was one of the parties plaintiffs, and the defendant, sole defendant. The record is introduced by the defendant, and he insists that it is conclusive as to his right against the plaintiff. A judgment in ejectment is only conclusive as to the title established in such action. (2 R. S. 235, § 36. Ryerss v. Rippey, 25 Wend. 432.) The record does not show what right or' title was established by that trial and judgment, in the defendant. Nor could it do so, consistently with the forms of pleading in actions of this character. The plaintiff proves by parol that on such former trial the defendant established a right of possession during the minority of the only plaintiffs in that action, this plaintiff being one; and nothing more. It is also shown that such grantor is now deceased and the grantees of full age. The defendant’s counsel objects to the parol evidence, as tending to vary or contradict the record. But it does neither. It merely shows what title the defendant set up and established in that action; which the record does not show. As to that right the judgment is conclusive, but no farther. This does not contradict the record, or vary it in any degree. The record is just as consistent with the right shown by the parol proof to have been established, as with that assumed to have been established by the defendant. It would be singular, indeed, if a landlord prosecuting his tenant, and failing to recover because the tenant’s lease had not expired before the commencement of the suit, should be barred by such judgment from a recovery of his land after the term expired.

Parol proof may be given to show the grounds upon which a judgment proceeded, when such grounds, from the form of the issue, do not appear by the record itself; provided the matters alledged to have been passed upon be such as might legitimately .have been given in evidence under the issue joined. (Wood v. Jackson, 8 Wend. 9.)

This does not conflict with the rule laid down in Green v. Clark, (5 Denio, 497.) The proof in that case contradicted the record, and tended-to show that the judgment was not rendered upon the issue tried, as appeared upon the face of the record. Not so here. The parol proof is consistent with the record, and merely proves what was tried.

[Yates Special Term, October 21, 1851.

I apprehend in such a case as this the mere record of the former recovery, establishes nothing in favor of the defendant, without parol proof, on his part, showing what title was established in that action. Without such parol proof, there is nothing to show that the title set up either by the plaintiff or the defendant, is the same in both suits. For aught that would appear, both parties may now be claiming under entirely different titles. The plaintiff is entitled to judgment.^(a)

Judgment for the plaintiff.

Johnson, Justice.]

(a) «) The decision in this case was affirmed on appeal to the general term in the seventh judicial district, June term, 1852.