Buck v. Spofford , 35 Me. 526 ( 1853 )

Shepley, C. J.

— The plaintiff claimed a legal or equitable interest in lands in township numbered 5, in. the eighth range west of the east line of the State. It is admitted, that whatever claim he had, accrued before the commencement of a former suit between the parties. While that suit was pending, the parties agreed upon a reference of it and of “ all demands between them,” and an entry thereof was made upon the docket of this Court during its session in July, 1847. The specification of his demands contained a claim for his share of all moneys received by the defendant and for lumber taken from the township; and for the plaintiff’s interest in a contract made with Perley, and that defendant should release to him any supposed title to any portion of the township, which might in equity belong to the plaintiff.

It appears from a copy of the submission, awards, judgment and testimony of two referees, that the whole of the subject matter of this suit was embraced in the submission and awards made in that suit, and that the referees considered and decided upon it, and that judgment was entered upon those awards.

It is insisted that the testimony of the two referees is not legally admissible to identify the matters submitted, and to prove that they acted upon them. The objection cannot prevail. Woodbury v. Northy, 3 Greenl. 85; Bixby v. Whitney, 5 Greenl. 192; 2 Greenl. Ev. & 78. The authorities cited do not decido otherwise. They do decido, that a written submission or award cannot be explained or varied by parole testimony.

The judgment in the former suit will be conclusive upon the rights of the parties, unless its effect has been impaired or waived by their contract made on October 3, 1849. The plaintiff, subsequent to that judgment, appears to have continued to claim a greater interest in that township than was awarded to him, and the agreement was made to secure to him, whatever rights he might have, as an inducement to join in a conveyance. It recites, that “ three eightieth parts of said township are in dispute between the said Spofford and Buck, each claiming a legal or equitable title to the same.” They agree that a certain sum was received for the part in dispute ; and that an action might be commenced to obtain a decision upon the rights of the parties.

The defendant agrees, that the sum so received, shall be considered as justly and equitably due to the plaintiff, provided he shall on trial “ prove that he at the time of his and others’ conveyance aforesaid, was legally or equitably entitled to the said three eightieth parts of said township.” Here is no consent, that tho plaintiff should be entitled to maintain this suit by proof that he had such a title at some former time. It requires the title to be established as existing at the time of the conveyance. There is no language from which a waiver of any existing right can be inferred. The clause securing to the plaintiff the right to “ offer any evidence in reduction of said sum,” could only have the effect to preserve to him such right in case he should fail to establish a complete and full defence.

The clause providing, that a new action may bo commenced, if this should be disposed of “ without an opportunity to try the merits,” cannot deprive the defendant of the right to present the former judgment as a bar. When an action is defeated by proof, that the subject matter of it has been already decided by a valid judgment existing between the parties, the decision is made upon the merits.

The contract did not provide, that an action should be maintained to carry into effect so much of an award in the former action as required the defendant to release to the plaintiff all right to three twentieth parts of the title derived from the foreclosure of a mortgage. Respecting that right, there does not appear to have been at any time any dispute. The claim of the plaintiff to the three eightieth parts, appears to have been in addition to the claim of the three twentieth parts. Plaintiff nonsuit.

Tenney, Rice and Hathaway, J. J., concurred.