The question presented by the exception is whether the judgment entered upon the appeal from the tax assessed in 1892 upon the plaintiffs' real estate is evidence of the true value of the same real estate in a subsequent appeal from the taxes assessed upon it in 1895 and 1896. In Winnipiseogee etc. Co. v. Laconia, 68 N.H. 284, it was held: First, that the principles of res adjudicata apply in tax appeals as in other cases. Second, that when the value of property upon a given date is res adjudicata between the parties, the judgment establishing such fact is conclusive proof of its value on that date, and if not too remote, competent evidence of the value of the same property at a later time in a subsequent suit between the same parties for a different cause of action. Third, that in such case the value established by the prior adjudication would be the value at the later date, "except in so far as the property may have increased or decreased in value" during the intervening period; that "on the trial the inquiry would be restricted to the question of the alterations of value during that period and their extent." And, fourth, that "the act of July 18, 1876 (P. S., c. 58, s. 7), providing that the assessors and selectmen shall, in the month of April in each year, examine all the real estate in their respective cities and towns, shall reappraise all such real estate as has changed in value in the year next preceding, and shall correct all errors that they find in the then existing appraisal, has no relation or application to the present question"; that "``the then existing appraisal' intended is the appraisal made by the last preceding board of assessors, and not the valuation established by a judgment."
The second conclusion reached in that decision is based upon the assumption that the true value of the appellants' property was technically in issue in the prior suit. If the court was right in making this assumption, and the principles of res adjudicata apply in tax appeals notwithstanding our statutory and constitutional provisions for periodic revaluation, then there would seem to be no escape from the conclusion that the judgment in the appeal from the tax of 1892 was conclusive of the value of the property at that time; and not being too remote, was competent evidence of the value of the same property in 1893, on the appeal from the tax of that year. But the rule is settled for this state, at least, that a fact embraced within a judgment, to be competent as evidence in a subsequent suit between the same parties for a different cause of action, must have been technically in issue in the prior
suit; and that if the fact was not technically in issue in that suit, — if its ascertainment was made material only by the course of the evidence, — that it cannot be proved by the judgment. King v. Chase, 15 N.H. 9; Metcalf v. Gilmore, 63 N.H. 174, 187, 189. In the latter case it was said: "The distinction is between facts which, being alleged in pleading, constitute a good cause of action or a good defence, and facts which are merely evidence — between facts which upon the face of the pleadings are essential to be established by one party or the other, and facts which upon the face of the pleadings are immaterial, and become material only by the course of the evidence. A judgment is conclusive upon the parties and privies of such of the former class of facts as are actually tried, but never of any of the latter class of facts, although they may be the only questions litigated."
The value of the appellants' property in 1892 having been actually tried in the appeal from the tax of that year, the material question for our consideration is whether that fact was technically in issue on that appeal. The subject-matter of the appeal was the recovery or abatement of the part of the tax for 1892 that was excessive. To entitle the appellants to a judgment in their favor they should have alleged in their petition and proved (1) that, they had complied with the requirements of chapter 57 of the Public Statutes, and (2) that the tax they had paid or were required to pay was excessive — that it subjected them to more than their fair share of the public expense. The first allegation was essential to give the appellate court jurisdiction. P.S., c. 59, s. 11. The second was the issue upon which the action proceeded. Edes v. Boardman, 58 N.H. 580, 588 589; Amoskeag Mfg. Co. v. Manchester, 70 N.H. 200, 205; State v. Corron,73 N.H. 434, 457, 458, 460. If the appellants established the fact that their tax for the year 1892 was excessive, they were entitled to a repayment or abatement of the excess tax, according as they had or had not paid it. They could have shown that the tax was excessive in various ways. If the whole or a part of the property taxed to them was exempt from taxation, they could have shown that their tax was excessive by proof that the whole or a part of their property was exempt. If they did not own the whole or a part of the property taxed to the, they could have shown the same fact by proof that they did not own any property in the taxing district, or a less quantity than was taxed to them. If their property was correctly appraised, they could have shown that their tax was excessive by proof that a greater valuation than that assessed upon it or too large a rate was made use of in computing the tax, or that some mathematical error occurred in the computation. And if the ratio between the true and assessed value of their property
was greater than the ratio between the true and assessed value of all other property in the taxing district, this might have constituted the evidence from which it could have been found that their tax was excessive. The proof of any one of these facts would not have been the issue upon which the appeal proceeded, but evidentiary facts from which the ultimate fact or issue could have been found; and they fall within the rule that "facts offered in evidence to establish the matters in issue are not themselves in issue, within the meaning of the rule, although they may be controverted on the trial." King v. Chase, supra. No one of them was essential to the petitioners' right of recovery on that appeal, while any of them could have been made material by the course of the evidence.
As the true value of the appellants' property on the first day of April, 1892, was not technically in issue on the appeal from the tax from that year and became material only by the course of the evidence, it follows that the assumption upon which the decision in Winnipiseogee etc. Co. v. Laconia, supra, was based is erroneous; that the judgment entered upon the appeal from the tax of 1892 is not conclusive evidence of the value of the appellants' real estate for that year, or competent evidence of its value in 1895 or 1896; and that the order must be,
Exception overruled.
PARSONS, C. J., and WALKER, J., did not sit: YOUNG, J., concurred.