"Q. Did she pay you for those lots? A. Yes, sir; she gave me two hundred dollars, I believe.

"Q. Did you make her a deed for it? A. Yes, sir.

"Q. What became of that deed? A. Sent it to her. I have never seen it since, to the best of my knowledge.

"Q. Did you sell those lots and convey them in that deed by the same description as that used by the assignee in his conveyance to you? A. I believe I did, not knowing there was an error in the deed of assignment.

"Q. What became of that assignment? A. I sent it to her.

"Q. Did you get any money for the second deed you made? A. Yes, sir; I did.

"Q. How much money did you get that time? A. Ten dollars..

"Q. How did you come to make this second deed? A. Some time in 1866, Hentig wrote me, claiming there was some error in the deed, and asked for a quitclaim deed, later, in 1887. He sent to Judge Nelson a quitclaim deed for me to execute, which I did."

J. W. Redden testified on the trial, among other things, as follows:

"Q. Were you present in the court-room in Topeka, Shawnee County, Kansas, when the case of J. W. Redden v. Hentig was on trial, which involved the title to this same property? A. I was.

“Q. An action of ejectment of this same property? A. Yes, sir.

"Q. Did you see F. G. Hentig there? A. I did.

"Q. What statement did he make then in your presence or hearing relative to his wife then having a deed from Bringhurst or Charles Puterbaugh for the property in controversy? A. Mr. Hentig had in his hand a paper that he said, I think [he addressed the conversation to Mr. Harris], was a deed from Charles S. Puterbaugh to A. J. Hentig for these lots in controversy, but he did not propose to offer it in evidence at that time; he had thought of doing it, but he would not.

"Q. What was the first name of the Puterbaugh that he said the deed was from? A. Charles S. Puterbaugh, I think it was.

"Q. When was this conversation? A. My recollection now is, that it was in the trial of the case, in the spring of 1885. "Q. At the time the case was being tried, and before the

trial was over with, and before judgment was rendered? A. Yes, sir; during the progress of the case."

H. H. Harris testified:

"Q. Were you present at the trial of the case of J. W. Redden v. A. J. Hentig, in Shawnee County, when the title of this property was in dispute? Yes, sir.

"Q. When was that? A. February, 1885.

"Q. Did you see F. G. Hentig at that time? A. Yes; he appeared for himself and his wife.

"Q. He was also a witness? A. Yes, sir.

"What statement did he make about his wife having a deed from Charles S. Puterbaugh? A. After we had submitted the evidence upon each side, and submitted to the court (Judge Martin, who was trying it pro tem.), Mr. Hentig got up, and pulled a paper out of his pocket that looked like a deed, and said to me, 'There is a deed to my wife for those lots, but I do not propose to try that title now; I am trying the tax title.' I wondered why he did not offer it, and immediately turned around to Dr. Redden, and told him it was a surprise to me that he had such a deed. I did not know why he did not offer it.

"Q. If Mr. Hentig made any statement as to whom that deed was from, state what it was. A. He said it was a deed from Charles S. Puterbaugh to his wife, Mrs. A. J. Hentig, the plaintiff in this suit.

"Q. For what lots? A. For lots Nos. 408, 410, 412, and 414 Clay Street, Topeka, Kansas."

Upon rebuttal, F. G. Hentig testified that the statements of J. W. Redden and H. H. Harris were incorrect, and that he never had any deed from Charles S. Puterbaugh to his wife in his possession until long after the trial of Redden v. Hentig, referred to; that the only deed his wife ever had from Charles S. Puterbaugh was dated July 9, 1887.

The judgment of February 18, 1885, rendered in the case of J. W. Redden v. Mrs. A. J. Hentig, recites, among other things, as follows: "The court finds that at the commencement of this suit the plaintiff, J. W. Redden, was the owner in feesimple of lots 408, 410, 412, and 414, on Clay Street, in the city of Topeka, Kansas, and is such owner now, and that all the material allegations in the petition are true; 2. The court further finds that Mrs. A. J. Hentig is in possession under two tax deeds, one recorded May 9, 1877, and the other September 30, 1882, both issued on the tax sale of 1874, for

the taxes of 1873; 3. That said tax sale was void, first, because there was an unlawful combination of bidders at the sale, which prevented competition; the sale was made for illegal costs charged against the lots."

Under the general finding of the trial court, we must assume that Mrs. A. J. Hentig had in her possession a deed from Charles S. Puterbaugh during the trial of the former case of J. W. Redden v. Mrs. A. J. Hentig, in the month of February, 1885. It is possible that Dr. Redden and Mr. Harris were mistaken as to what deed Mr. Hentig exhibited, and therefore that the trial court was led into error; but, upon the evidence presented, we cannot now interfere or disturb the finding. There was sufficient evidence to support it, and the trial court's finding is conclusive. Therefore, under the evidence and the general finding of the trial court, we think its judgment must be affirmed, as the plea of res adjudicata was fully sustained.

It has been said several times by this court, and also by many other courts, that "a judgment or decree of a court of competent jurisdiction is not only final as to the subject-matter, but also as to every other matter which the parties might have litigated in the case, and which they might have had decided."

Under the provisions of the civil code, an action in the nature of ejectment, like the former case of J. W. Redden v. Mrs. A. J. Hentig, settles the title between the parties in favor of the one recovering the judgment: Hurd v. Comm'rs of Harvey Co., 40 Kan. 92; Barrows v. Kindred, 4 Wall. 403; Mahoney v. Middleton, 41 Cal. 41; Marvin v. Dennison, 1 Blatchf. 159; Edwards v. Roys, 18 Vt. 473; Reed v. Douglas, 74 Iowa, 244; 7 Am. St. Rep. 476. This court, in Commissioners of Marion Co. v. Welch, 40 Kan. 770, said “that a general finding of title in the plaintiff-consequently of no title in the defendant- is a conclusive and binding decision against the defendant on the question of title, from whatever source it may be derived, and forever estops him from asserting a claim of title which existed at the time of the decree."

If Mrs. Hentig had in her possession the deed from Charles 8. Puterbaugh for the lots during the pendency of the former action of Redden against herself (as we are bound to assume she did have, from the finding of the trial court), she could have offered that deed in evidence for what it was worth, to sustain her title and her right of possession. If necessary,

she could have filed a supplemental answer. The law does not favor a multiplicity of suits, and where all matters in controversy between parties as to the title or possession of real estate might be finally ended in one action, the law requires that this should be done. Parties cannot try title to real esstate by piecemeal, in separate and independent actions upon separate deeds or chains of title, when they have in their possession during the trial separate and different deeds. If the deed from Charles S. Puterbaugh to Mrs. Hentig executed in 1883 did not, on account of a mistake of the parties, contain a proper description of the lots, yet if Charles S. Puterbaugh had any title or interest therein, that title or interest was transferred to Mrs. Hentig in equity, if not in law, and therefore she ought to have asserted in the former action the deed which she first obtained from Puterbaugh. If Mrs. Hentig had obtained a new and distinct title to the lots after the final judgment in the former action, then that judgment would not have been res adjudicata against her. But that is not this case. Under the finding of the trial court, she obtained her new and distinct title to the lots pending the former action. It was not used in that action. It was too late to use this title after the final judgment in the former action.

The judgment of the district court will be affirmed.

JUDGMENTS-RES JUDICATA. -The estoppel of a former judgment extends to every material matter within the issues which was expressly litigated, and also to those matters which might have been litigated and determined: Huntley v. Holt, 59 Conn. 102; 21 Am. St. Rep. 71, and note; Hobby v. Bunch, 83 Ga. 1; 20 Am. St. Rep. 301, and note; Tadlock v. Eccles, 20 Tex. 782; 73 Am. Dec. 213, and note; extended note to Lawrence v. Hunt, 25 Am. Dec. 542; McCullough v. Dashiell, 85 Va. 37.

JUDGMENT IN EJECTMENT AS RES JUDICATA. An exception to the rule of res judicata exists in an action of ejectment on a legal title, in which successive suits may be prosecuted until two concurring judgments are obtained: Marsteller v. Marsteller, 132 Pa. St. 517; 19 Am. St. Rep. 604. For an extended discussion of the conclusiveness judgments in ejectment, see note to Caperton v. Schmidt, 85 Am. Dec. 208. See Johnson v. Vance, 86 Cal. 110. Purchasers after a judgment in ejectment must yield to the process on such judgment awarding possession to the plaintiff: Hawkins v. State, 125 Ind. 571. A judgment in ejectment upon an equitable title is a bar to any subsequent ejectment for the same land, and includes all equitable titles: Schive v. Fausold, 137 Pa. St. 83.

Where a party

JUDGMENTS FAILURE TO SET UP DEFENSE ESTOPPEL. has had an opportunity to set up a defense, and neglects to do so, a judgment recovered against him will be binding: Morrill v. Morrill, 20 Or. 96; 23 Am. St. Rep. 95, and note. As to when a former judgment acts as an estoppel, see Moore v. Williams, 132 Ill. 589; 22 Am. St. Rep. 563, and note; Caperton v. Schmidt, 26 Cal. 479; 85 Am. Dec. 187, and note.

TITLE ACQUIRED PENDENTE LITE may generally be asserted, notwithstanding the judgment, unless it was pleaded by some supplemental plea, and thus brought within the issues before the court: Freeman on Judgments, sec. 329; McLane v. Bovee, 35 Wis. 27; People's 8. B. v. Hodgdon, 64 Cal. 95; People ▼. Holladay, 68 Cal. 439; Hemmingway v. Drew, 47 Mich. 554; contra, Reed v. Duglas, 74 Iowa, 244; 7 Am. St. Rep. 476; and the principal case,

REDDEN V. METZGER.

[46 KANSAS, 285.]

-A

JUDGMENTS - FINDINGS AFFIRMED BY JUDGMENT AS RES JUDICATA. finding of fact in a foreclosure suit in favor of a defendant therein, that he has a valid tax deed subsequent to the mortgage, and is the owner and in the possession of certain laud described therein, which finding is affirmed by the judgment of foreclosure as to the other land described, specially excepting his land therefrom, is conclusive as to his title thereto, as to all the parties and those claiming under them, in a subsequent action of ejectment for the same land.

Redden and Schumacher, and H. H. Harris, for the plaintiff in error.

Johnson, Martin, and Keeler, and G. A. Huron, for the defendants in error.

GREEN, C. This was an action of ejectment brought by the plaintiff in error against the defendants in error, in the district court of Shawnee County, to recover the southeast quarter of section 11 in township 10 of range 16. The defendants set up a claim of title under a certain tax deed, and also alleged that the question of the defendants' title had been finally adjudicated in a suit commenced in the district court of Leavenworth County, and set up such decree and judgment as being res adjudicata. The case was tried by the court without a jury, and judgment rendered in favor of the defendants.

It seems that George R. Hines was the owner of the undivided half of this land on the first day of July, 1873. In October of the same year, he conveyed his interest to W. H. Carson, who deeded to Harrison C. Hines, and he sold the same to the plaintiff in error on the eighteenth day of August, 1884. The defendants' claim to the land is based upon the possession of Eli W. Metzger, on March 1, 1883, under a certain tax deed, and a foreclosure suit commenced by W. J. Buchan, as trustee, in the district court of Leavenworth County, on the seventh day of March, 1883, against George C. Hines, Harrison C. Hines, Eli W. Metzger et al., to foreclose

AM. ST. REP., VOL. XXVL —7