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the same parties, upon a different claim or cause of action.” In the former case the judgment, if rendered upon the merits, constituted an absolute bar to a subsequent action * * concluding parties, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.

* But where the second action, between the same parties, is upon a different claim or demand, the judgment on the prior action operates as an estoppel only as to those matters in issue, or points controverted, upon the determination of which the finding or verdict was rendered.

In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined. Cromwell v. County of Sac, 94 U. S. 351. In Equitable Trust Co. v. Fisher, 106 Ill. 189, an action of forcible entry and detainer had been brought, under the sixth clause of the act, by the purchaser at a sale under a trust deed against the grantor in possession, and judgment was rendered in favor of the purchaser. Such grantor or maker of the trust deed afterwards filed a bill to set aside the sale, and the judgment against him in the forcible detainer suit was pleaded and relied upon as a bar to the relief prayed for in the bill. We held that the judgment was not a bar in that case, and there said: “As a general rule a judgment or decree can only be so pleaded when the same question involved has been adjudicated and determined by a court of competent jurisdiction to try and determine the question. In that case the question of the right of possession was alone involved, and not the title."

We are of the opinion that the judgment rendered in favor of appellees in the action of forcible entry and detainer, brought against them by appellant, cannot be pleaded as a bar in the present suit.

It is further claimed by appellees, and assigned as one of the cross-errors, that appellant, on the trial below, did not prove title in itself to the property in litigation. It is not denied that appellant has established its ownership of an undivided two-thirds of the lots. It appears, however, that under a decree rendered November 1, 1855, in a foreclosure proceeding in the circuit court of Gallatin county, an undivided one-third part of lot 1,144 was sold by Martin S. McAtee, a special commissioner appointed by the court, on March 5, 1855, to William A. Docker. The sale was reported to the court, and confirmed. On December 21, 1857, the commissioner executed a deed to Docker, and reported to the court that he had done so. Appellant claims under this deed, and it was objected to as having no seal. It was then offered as color of title, and for the purpose of showing the extent and boundaries of the possession of the grantee therein.

The proof is clear, independent of the deed in question, that William A. Docker, during his life, and his heirs and their grantees since his death, have been in possession of lot 1144 from the date of the deed, December 21, 1857, to some time in 1881, a period of more than 20 years. Appellant, having shown possession under a claim to the fee by itself, and those under whom it holds, for more than 20 years, was entitled to recover. It is, however, insisted by appellees that a plaintiff in ejectment whose title is based on possession only, cannot recover against a defendant who is lawfully in possession; and that as they were put into possession of the property by a writ of restitution issued upon the judgment obtained by then against Kampan in the action of forcible entry and detainer brought before the justice of the peace, their possession is lawful, and they are not intruders. Counsel for appellees lose sight of an important distinction between prior possession and adverse possession. Sedg. & W. Tr. Title Land, 8 723. A prior possession of land for a less period than 20 years is prima facie evidence of title, and will authorize a recovery in ejectment, as against a mere intruder or trespasser. Bowman v. Wettig, 39 Ill. 416; Herbert v. Herbert, Breese, 354; Dills v. Hubbard, 21 Ill. 328. But a prior possession for less than the statutory period of limitations has been held not to authorize a recovery against a defendant who is lawfully in possession. Jackson v. Rightmyre, 16 Johns. 314. In Drew v. Swift, 46 N. Y. 204, the court say: “The defendant was not a trespasser, but went into possession, having title, and the plaintiff was not therefore, entitled to recover upon proof of any prior possession other than an adverse possession for a period which would bar an entry.” Where the plaintiff in ejectment shows an adverse possession for 20 years, so that the entry is barred, he is entitled to recover, even against a defendant, whose possession for a less period is lawful.

We hold that the cross-errors of appellees are not well assigned. The judgment of the circuit court is reversed, in so far as it sets aside the tax deed, and finds the amount of taxes and penalties and costs, and in so far as it requires a payment of $2,485.23, as a condition precedent to the issuance of a writ of possession. In all other respects it is atfirmed.

Partly reversed and partly affirmed.

SCHOLFIELD and CRAIG, JJ., dissent.

NOTE.

ESTOPPEL BY JUDGMENT. A judgment is an estoppel, in a subsequent action between the same parties or their privies, as to any matter determined thereby, Whiteside v. Haselton, Å Sup. Ct. Rep. 1; Kurtz v. Carr, (Ind.) 5 N. E. Rep. 692, and note; Ruppel v. Patterson, 1 Fed. Rep. 220; Radford v. Folsom, 3 Fed. Rep. 199; Flanagin y. Thompson, 9 Fed. Rep. 177; Moch v. Virginia Fire Ins. Co., 10 Fed. Rep. 696; Oregonian Ry. Co. v. Oregon Ry. & Nav. Co., 27 Fed. Rep. 277; Sharon v. Hill, 26 Fed. Rep. 337; Sweizey v. Stetson, (Iowa,) 25' N. W. Rep. 741; Shirland v. Union Nat. Bank, (Iowa) 21 N. W. Rep. 200; Dicken v. Morgan, (Iowa,) 13 N. W. Rep. 57; and such matters will not be considered in a second action, Brooks v. O'Hara, 8 Fed. Rep. 529; Price v. Dewey, 11 Fed. Rep. 104; Nelson v. Bevins, (Neb.) 28 N. W. Rep. 331 ; Wolfinger v. Betz, (Iowa) 24 N. W. Rep. 228; Hasty's Heirs v. Berry, (Ky.) 1 S. W. Rep. 8, and note; but, in order to be available as an estoppel, the particular controversy must have been necessarily tried and determined, Steam-Gauge & Lantern Co. v. Meyrose, 27 Fed. Rep. 213; Geneva Nat. Bank v. Independent School-dist., 25 Fed. Rep. 629; Smith v. Town of Ontario, 4 Fed. Rep. 386; Richardson v. Richards, (Minn.) 30 N. W. Rep. —; Brigham V. McDowell, (Neb.) 27 N. W. Rep. 384; Morse v. County of Hitchcock, (Neb.) 27 N. W. Rep. 637; Shirland v. Union Nat. Bank, (Iowa,) 21 N. w. Rep. 200; and if the point under consideration was not involved in the prior suit, and could not properly be litigated there, it is not res adjudicata, Oliver v. Cunningham, 7 Fed. Rep. 689; Nichols v. Marsh, (Mich.) 28 N. W. Rep. 699.

The fact that plaintiff seeks, in both actions, to recover the same amount of money, or even the same damages, is not enough to establish the identity of the two causes of action. Marsh v. Masterson, (N. Y.) 5 N. E. Rep. 59. The test is to inquire whether or not the same evidence will naintain both actions. Clark v. Blair, 14 Fed. Rep. 812; Emma Silver M. Co., Limited, v. Emma Silver M. Co. of N. Y., 7 Fed. Rep. 401 Hahn v. Miller, (Iowa,) 28 N. W. Rep. 51.

A judgnient in trespass is not a bar to a subsequent ejectment suit for the same premises, between the same parties, Keyser v. Sutherland, (Mich.) 26 N. W. Rep. 865; nor is one dismissing an action for an accounting between copartners, on a finding that no partnership existed, a bar to an action for services, Marsh v. Masterson, (N. Y.) 5 N. E. Rep. 59.

STOKES V. RILEY.

(Supreme Court of Illinois. November 13, 1886.) 1, EXECUTION-SALE-DEED NOT RECORDET-NOTICE.

When the time after a sheriff's sale, viz., five years, in which a sheriff's deed can be taken ont, has passed by, and no sheriff's deed is recorded, a presumption is raised that none has been executed, and a buyer is not charged with notice of rights growing out of the sheriff's sale.

2. SAME-LIMITATIONS--RETROACTIVE STATUTE.

The Illinois statute requiring sheriffs' deeds to be taken out within five years (1 Starr & C. St. c. 77, p. 1043) is retroactive, as to sales made before its passage, but is constitutional, as it allows a reasonable time for taking out deeds after its passage.

Ryhiner v. Frank, 105 Ill. 326, followed. 3. DEED-REGISTRATION-PRIORITY-QUITCLAIM.

When there are two conveyances of the same land, either of which, by itself, would be sufficient to pass the title, the deed first recorded is given the preference and passes the title, and a quitclaim is as effectual to pass the title as a deed of bargain and sale.

SHELDON, J., dissents.

John P. Wilson, for appellant. Augustus N. Gage and Henry D. Beam, for appellee.

SCHOLFIELD, J. It is contended on behalf of appellant that the court below erred (1) in decreeing that Asahel Gage was a purchaser, for value, of the lots in question; (2) in decreeing that Gage was not put upon inquiry as to whether a sheriff's deed had issued upon a sale of the lots in question. In our opinion, neither contention can be sustained.

1. The point in Brown v. Welch, 18 Ill. 346, and Boone v. Chiles, 10 Pet. 211, cited by counsel for appellant, is not that the proof shall show that the money was actually paid by the hand of the party to whom the delivery of the deed is made, but that the property shall in fact have been paid for before notice of any adverse title which is attempted to be asserted. Obviously, the ruling is just as applicable where A. buys property and pays for it, but, for some laudable reason of his own, has the title conveyed to B., who agrees to hold it in trust for him, as it is where A. takes the title directly to himself.

The lots here were purchased for value, and the price was paid at the time of the purchase. The title was taken to Asahel Gage, and so the payment was in fact for him. Henry Gage, however, made the payment, but he made it for the purpose of procuring the title to be made to Asahel. Whether the money had been Asahel's before, or Henry was thereby paying a debt he previously owed to Asahel, or he was making a gift of the money to Asahel, or he was actuated by other motives, the money then became that of Asahel, and the payment was therefore constructively a payment by Asahel, by the hand of Henry. What may have been or may now be the secret equities as between Asahel and Henry in regard to these lots concerns no one, at present, but themselves. That was not a proper subject of inquiry in this proceeding.

2. The sale under which appellant claims, occurred on the fifteenth of July, A. D. 1869. The deed from Frederick W. Brooks to Asahel Gage was executed on the nineteenth day of February, A. D. 1880, and the deed from Taylor V. Ward to Asahel Gage was dated on the twenty-first day of March, A. D. 1880. The sheriff's deed to appellant and Riley, although dated August 25, A. D. 1873, was not filed for record in the proper office until the sixth day of May, A. D. 1881; so that, when the deeds were executed to Gage, he had no notice by the record of the existence of the deed to appellant and Riley. It is not claimed that he had actual notice of the existence of such deed, but the claim is that he had notice of such facts and circumstances as should have put him upon inquiry which would lead to a knowledge of the deed. That of which he had notice was furnished by the abstract in evidence, and is this: Writs of attachment issued in favor of Lockwood and five others out of the superior court of Cook county, July 1, A. D. 1868, against Taylor V. Ward; judgments in the attachment suits, April 26, A. D. 1869; general and special executions not returned; certificate of levy on the lots, July 1, A. D. 1868; certificate of sale by sheriff of Cook county to R. S. Lockwood et al., dated July 15, A. D. 1869, and recorded May 11, A. D. 1870. And also the following in a book kept in the sheriff's office:

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Fi. fa.

741 R. S. Lockwood

D. $5,363 00 1869. 1869. 21,958 vs. 12,766 specials. P. C. 58 45 A pl 28 July 26 Taylor V. Ward.

D.O. 1 30 Walker & Dexter.

Br.

Returned Sold the R. E. levied upon by Shf. on D. $23 85 48–113 741 attmt, in this and 742, 743, 744, Clk. S. C. 4 80

745, 746, post, July 15, 1869, for
$13,300 to all the plffs., and
returned satif. for $4,419. Pd.
plff. by rects. applied on 742,
$1,700.55; on 743, $1,150.05; on
744, $1,040.30; on 745, $2,242.85;

on 746, $2,489.75.
Retd. 10 Apl. 71, on set.
742 Sold as in 741, ante, and retd. clk. S. C. 4 80 117

satif., for $1,700.55. Pd. plif.'s

atty. by rect. Retd. 10 Apl. 71, on set.

1 28

26! Br.

742 James Chamber- Fi. fa. D. lain

special. P.O. 21,959 vs. 12,767 Walker & Dexter.

Same.

2,068 00 Apl. 30

69

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4 80

117

743 Charles P. Rus- Fi. fa. D.

1,400 40 suni

special. P. C. 18 45 21,960 vs. 12,768

D. C.

1 30 Same. Walker & Dexter. Apl. 26.

743 Sold as in 741, ante, and retd. sat- Clk, 8. O.

isfied, for $1,150.05. Retd. 10 Apr. 71, on set.

[merged small][ocr errors][merged small]

117

Ezra C. Hays

Fi.fa.

D. 1,268 51 21,961 vs. 12,769 special. P. C. 18 75 Same.

D. C.

1 30 Walker & Dexter. Apl. 26.

29

271 Br.

117

745 James Parlett Fi.fa. D. 2,725 75 21,962 vs. 12,770 special. P. C. 18 85 Same.

D. C.

1 30
Walker & Dexter. Apl. 26.

69
746 George E. Riley Fi.fa. D. 3,025 00
21,963 vs. 12,791 special. P. C. 18 25
Sanie.

D. C. 1 30
Walker & Dexter. Apl. 26.

69

744 Sold as in 741, ante, and retd. sat- clk. S. C.4 80

isfied, $1,040.30. Pd. plff.'s atty.

by rect. Retd. 10 Apr. 71, on set. , 745 Sold as in 741, ante, and retd. Clk. S.C. 4 80

satfd., for $2,242.85. Pd. plff.'s

atty. by rect.
Retd. 10 Apl. 71, on set.
746 Sold as in 741, ante, and reta. Cik. S.C. 4 80

satfd., for $2,489.75. Pd. plff.'s

atty. by rect. Retd. 10 Apl. 71, on set.

16 29

27] Br.

117

This was quite sufficient to show that the lots had been sold, but the lien created by the judgment and levy alone expired at the end of the seven years, which was April 26, A. D. 1876. Weis v. Tiernan, 91 Ill. 27; Hall v. Gould, 79 Ill. 22; Rainey v. Nance, 54 Ill. 38.

The thirtieth section of the act of March 22, 1872, in relation to certificates of purchase at sheriff's sale on execution and attachment, provides that “When the premises mentioned in any such certificate shall not be redeemed in pursuance of law, the legal holder of such certificate shall be entitled to a deed therefor at any time within five years from the expiration of the time of redemption. * * If the time of redemption shall have elapsed before the taking effect of this act, a deed may be given within two years from the time this act shall take effect. When such deed is not taken within the time limited by this act, the certificate of purchase shall be null and void. * * *" 1 Starr & C. 1043. In Ryhiner v. Frank, 105 Ill. 326, we held that this statute, though retrospective and taking effect as to sales made before its passage, was not unconstitutional, because it gave a reasonable time for taking out deeds after its passage.

The general rule, under our recording laws, is where there are two conveyances of the same land, either of which, by itself, would be sufficient to pass the title, the deed first filed for record is given the preference, and passes the title, (Delano v. Bennett, 90 Ill. 533;) and a quitclaim deed is as effectual for the purpose of transferring title, under this rule, as a deed of bargain and sale. Brown v. Barmer, C. & C. 0. Co., 97 Ill. 214.

While it is true, as contended by counsel, that the failure to file a deed for record does not render it absolutely void, yet it permits the title, which it purports to convey, to be taken away by a subsequent deed obtained by the grantees in good faith without actual notice, and this renders it inoperative; and so the presumption must be quite as strong, because the interest is the same, that, when a deed is obtained to property of which the party is not in the actual possession, he will put it upon record, as that, being entitled to a deed, he will have it executed. But we know, as a matter of experience, that of 10 times where sales are made under attachment on execution, and a redemption is effected through negligence of the officer, the action of the parties, or from inevitable casualty, no record is made of the fact; and hence, where, in the case of a sheriff's sale, the time of redemption not only having expired, but also the time within which a deed can be obtained under the sale having expired, and no deed having been filed for record, the reasonable conclusion from the record is that from some cause no deed has been executed. The presumption, of course, is not absolutely conclusive, but it is such that a man of ordinary prudence would act upon it.

In Grundies v. Reid, 107 Ill. 312, we quoted, as applicable to this question, from the remarks of Vice-chancellor WIGRAM in Jones v. Smith, 1 Hare, 55, as follows: "If, in short, there is not actual notice that the property is in some way affected, and no fraudulent turning away from a knowledge of facts which the res gesto would suggest to a prudent mind; if mere want of caution, as distinguished from fraudulent and willful blindness, is all that can be imputed to the purchaser,—there the doctrine of constructive notice will not apply; there the purchaser will, in equity, be considered, as in fact he is, a bona fide purchaser without notice. This is clearly Sir Edward Sugden's opinion, and with that sanction I have no hesitation in saying that it is mine also." And we also therein quoted this from Lord Chancellor CRANWORTH in Ware v. Lord Egmont, 4 De Gex, M. & G. 473: “The question upon constructive notice is not whether the purchaser had the means of obtaining, and might, by prudent caution, have obtained, the knowledge in question, but whether the not obtaining it was an act of gross or culpable negligence." The doctrine thus quoted is sustained by 2 Sugd. Vend. (Perkins' notes,) p. 570 et seq. S$ 66, 67.

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