Ansley v. Pearson , 8 Ala. 431 ( 1845 )

COLLIER, C. J.

The precise form of the issue, which was submitted to the jury in the trials of the right of property, is not shown by the record, but as the only proper issue, was an affirmation by the one party that the property levied on was subject to the attachment, and a denial of that fact by the other, we must intend that the issues wei;e thus framed. If the defendant in the attachments had the possession of the slaves in question, as a mortgagor, with an undisputed right of possession as against the complainant, then he had an interest that could be levied on and sold, although the purchaser would take it subject to the in-cumbrance. [P. & M. Bank of Mobile v. Willis & Co. 5 Ala. Rep. 770.] The verdict and judgment upon such an issue as we have supposed, if in favor of the plaintiff] would be an unqualified condemnation of the property, to the satisfaction of the Judgment, and execution. To avoid a result which must necessarily be unfavorable to the claimant, wnere he has not a present legal right, he should not interpose a claim at law, but seek the interference of Chancery, <• for the purpose of ascertaining and separating the interests of the mortgagor.” Williams & Battle v. Jones, 2 Ala. Rep. 314. See also, 5 Porter’s Rep. 182; Davidson & Stringfellow v. Shipman, et al. 6 Ala. Rep. 35.

We are aware, that in several of the cases cited, it is strongly intimated that a verdict against the claimant who was a mortgagee, rendered upon the proper issue, would be conclusive of his rights under the mortgage; and this whether the mortgage was forfeited or not. But these intimations were not points there arising in judgment, and must be regarded as mere incidental remarks, not of authoritative influence. We will therefore treat the question'as res integra, and briefly inquire how the judgments at law affect the complainant.

It is laid down generally, «that the judgment or decree of a Court possessing competent jurisdiction, shall be final as to the subject matter thereby determined.” [Le Guen v. Govemeur, et al. 1 John. Ca. 436. See 1 Blackf. Rep. 360.] So it has been .held, that a verdict and judgment upon the merits in a former suit, is, in a subsequent action between the same parties, where the cause of action, damages, or demand is identically the same, conclusive against the plaintiff’s right to recover, whether pleaded in bar or given in evidence under the general issue, where such evidence is legally admissible. [Shaffer v. Stonebraker, 4 G. & Johns. Rep. 345. See also, 2 Pick. Rep. 20; 2 Taunt. Rep. 705; 7 Pick. Rep. 341; 8 Id. 171.]

Where the plaintiff offers evidence in relation to a claim contained in one count of his declaration, which evidence is rejected by the judge, and instead of striking out the count to which such evidence is applicable, the plaintiff suffers a general verdict to pass on the whole case, the judgment thereon will bar a new action for the claim so attempted to be established. [Smith v. Whiting, 11 Mass. Rep. 445; Irwin v. Knox, 10 John. Rep. ,365; Phillips v. Berrick, 16 Id. 136.] In Wilder v. Case, 16 Wend. Rep., 583, the Court said, “ it is well settled, where a matter is improper byway of defence, in a justice’s court, (for example by way of set off,) if a party will introduce it, and he goes into the investigation with a' view to make it available, and it passes and is submitted to the justice, or a jury, it cannot be heard again.” But it is admitted, that if the demand had been rejected in the former suit, on the objection being raised, it would not have been barred; but having been litigated, whether allowed or disallowed, it was barred. The only way in which the defendant in the former suit could have saved his demand from being barred by the judgment therein, was, by stopping short the moment its admission for the purpose proposed, was refus-ed by the justice.

It has been decided, that where an action is brought against a defendant on two notes indorsed by him, and the case is submitted to the Court, who give an opinion in favor of the plaintiff, on both notes, but afterwards permit him to withdraw one of them, and then render's judgment in his favor for the amount of the other note only, he is not thereby precluded from maintaining a subsequent action against the defendant on the note that was thus withdrawn. [Wood v. Corl, 4 Metc. Rep. 203. See also, Curtis v. Groat, 6 Johns. Rep. 168; McLean v. Hugarin, 13 Id. 184; Wolfe v. Washburn, 6 Cow. Rep. 261; Skelding v. Whitney, 3 Wend. Rep. 154; Beebe v. Bull, 12 Id. 504; 2 C. & H.’s Notes to Phil. Ev. 963-5.]

If the record shows what matters were in issue, and decided, parol evidence is inadmissible to prove that other matters not within the issue were also decided. [Manny v. Harris, 2 Johns. Rep. 24.] It is competent to explain, but not to add to, or contradict a record; and it may now be regarded as settled, in a great majority of the American Courts, that the record of a former suit may be explained and the matters to which it relates identified. Every fact which exists on record, must be proved by the record; but when the question is as to the real subject matter of a suit, or to show a bar to another suit, or to lay the foundation of an action of indemnity, the identity of the cause of action, may be proved by other than record evidence. [3 Pick. Rep. 429, 434; 17 Serg. & R. Rep. 319; 6 T. Rep. 607; 1 N. Hamp. Rep. 35; 2 Id. 26, 61; 5 Mass. Rep. 337; 8 Pick. Rep. 113; 10 Wend. Rep. 80; 3 Cow. Rep. 120; 2 Yerger’s Rep. 467; 9 Porter’s Rep. 397; 6 Ala. Rep. 27; 7 Ala. Rep.]

The learned annotators upon Phillips on Evidence,- (p. 957,) as a deduction from the authorities, say, “Where the matter to be litigated in the second suit was involved in the former issue, and essential to the finding .of the verdict, we have seen that it shall be taken conclusively to have been decided, (ante 594, p. 844 seq.) Where the matter might, or might not, have been tried consistently with the issue,it shall be taken to have been prima facie passed upon. And accordingly, if the record shows that the first suit was apparently for the same cause of action sought to be litigated in the second, it will be prima facie evidence, that such cause of action has once passed in rem judicatem; and hence the onus will devolve on the party against whom the record is used to show the contrary.” [16 Johns. Rep. 136; 6 Cow. Rep. 225; 9 Sergt. & R. Rep. 424; 2 Verm. Rep. 111, 114.]

The complainant alledges that the validity of the mortgage was not controverted by the plaintiffs in attachment, that it was rejected by the Court as evidence, on motion of the plaintiffs, not because it was objectionable as a security, but on the ground that it did not tend to prove the issue on the part of the claimant; which was, whether the defendant in attachment had' such an interest in the slaves as was subject to the attachments. Assuming this allegation to be true, as we must, upon a motion to dismiss the bill for want of equity, and it is perfectly clear that the validity of the mortgage, (whether an inquiry within the scope of the issue or not,) was not considered by the jury.

The cases of Smith v. Whiting, Irwin v. Knox, and Phillips v. Berrick, supra, are not like the- present upon the point we are considering. There the evidence was offered by the plaintiff, for the purpose ofisustaining one of the counts in the declaration, and though it was rejected, yet the plaintiff did not strike out that count, or enter a nolle prosequi thereon, but the jury were permitted to render a general verdict upon the whole case made by the pleadings. The record itself showed that the matter was submitted for trial, while here the validity of the mortgage was not necessarily passed on; and in order to do justice, the complainant should be allowed to show what transpired at the trials of the right of property. Such evidence, instead of contradicting, is merely explanatory of the record.

It may be conceded, so far as this case is concerned, that it was competent for the plaintiff to have waived all objection to the admissibility of the mortgage as evidence, and then have shown that it was invalid. Yet, according to the principles we have stated, and the authority by which they are sustained, it is unquestionably clear, that it was not allowable for the claimant to show, that the mortgage instead of being admitted was in fact rejected. Such proof, (we -have seen,) is permissible upon the ground, that the matter though involved in the trial of the right of property was not essential to the finding of the verdict.

If the judgments .upon the trial of the right of property were irregularly entered, so as to charge the complainant with thrice the value of the slaves; or if the executions were oppressive, or unauthorized by the judgments, we are inclined to think it would have been competent for the Court of Law, to apply the corrective in some form. But our conclusion upon the point first considered, renders the consideration of this unnecessary.

The objection to the bill for multifariousness, we think, cannot be supported. In order successfully to resist and perpetually enjoin the judgments, it was necessary to show that the mortgage was valid. In a controversy of this character the plaintiffs in the attachments and the mortgagor, were all proper parties. The prayer for an injunction was necessary to make a decree of foreclosure available ; and a foreclosure, if the mortgagee was entitled to the benefit of his security, was necessary to the final adjustment of the rights of all the parties in interest. If the slaves are of value more than sufficient to satisfy the complainant’s lien, the attaching creditors are entitled to the excess to satisfy their judgments. See Williams & Battle v. Jones, supra.

Upon the first question examined, the decree is reversed, and the cause remanded.