Uppfalt v. Woermann. ant Woermann mortgaged the premises to his grantor, Nelson. "12th. That on June, 1886, the plaintiff was ousted from the possession of said premises by the defendant Nelson, and as a conclusion of law, that the plaintiff, by virtue of his contract as aforesaid, had an equity or interest in said premises superior to that held by defendant Olson, under his contract, and that, at the time of making final payment for said premises and accepting a deed therefor, the said Olson had notice of plaintiff's interest in said. premises, and took title thereto subject to such interest; that the said defendants Nelson, Woermann, and Renard acquired their several interests in said land with at least constructive notice of plaintiff's rights in such premises, and that the conveyances of the same from said Scranton to said Olson, and from Olson to Nelson, and from said Nelson to defendant Woermann were in effect an assignment of said Scranton's interest under said contract with plaintiff to said parties, and that said defendant Woermann took and now holds the legal title to said premises in trust for said plaintiff, and it is therefore considered and adjudged that, upon payment, or tender of payment, to the said Woermann of the balance due and to be paid by the said plaintiff to said Scranton, under said contract, together with interest thereon, as provided in said contract, and all taxes paid on said land by the said defendants, or either of them, and interest on said amounts then paid, amounting, in the aggregate, to five hundred and 30 dollars ($530.30), the said Woerniann is to execute a conveyance of said premises to the said plaintiff, and upon his failure or refusal so to do for the space of twenty (20) days after such payment or tender of payment, then this decree to stand as and for such conveyances, and that the said mortgage deeds from the said Woerman to said Nelson, and from said Nelson to said Renard, be canceled and held for naught to the extent that they cover said premises and that the plaint 100 Uppfalt v. Woermann. iff have and recover his costs from defendants, taxed at $45.48." The principal question in this case is, whether or not the former action in ejectment is a bar to the prosecution of this action. The case of Uppfalt v. Nelson, 18 Neb., 533, was brought by Nelson against Uppfalt to recover the possession of the land in controversy. The answer in that case was a general denial and the judgment was in favor of Nelson. The question of the equitable rights of Uppfalt under his contract was not pleaded in that action, although proof tending to show such rights was admitted. The proof, however, in that case, so far as the conclusiveness of the judgment is concerned, could go no farther than the pleadings, and the pleadings not being amended to conform to the proof, it was unavailing. The rule is well established "that the judgment of a court of concurrent jurisdiction directly upon the point is, as a plea, a bar; or as evidence, conclusive between the same parties, upon the same matter directly in question in another court; second, that the judgment of a court of exclusive jurisdiction, directly upon the point, is, in like manner, conclusive upon the same matter between the same parties, coming incidentally in question in another court for a different purpose. But neither the judgment of a concurrent or exclusive jurisdiction is evidence of any matter which came collaterally in question though within their jurisdiction, nor of any matter incidently cognizable, nor of any matter to be inferred by argument from the judgment." This rule was adopted and approved by Story, J., in Harvey v. Richards, 2 Gall., 229, and by Chief Justice Gibson in Hibshman v. Dulleban, 4 Watts [Pa.], 191. The question arose in this court in Gayer v. Parker, 24 Neb., 643. It was held that a former verdict and judgment are conclusive only as to all the facts directly in the issue, and do not extend to facts which may be in contro Uppfalt v. Woermann. versy and which rest upon evidence and are merely collateral. That case was carefully examined and it is believed that the decision is right. In ejectment under the statute the defendant under a general denial may prove an equity which negatives the plaintiff's right to the possession (Dale v. Hunneman, 12 Neb., 221); but can obtain no affirmative relief (The Duchess of Kingston's Case, 20 Howell's State Trials, 538). Where he seeks affirmative relief by setting up a contract which will give him the right to demand specific performance, this must be done by answer in the nature of a counter-claim. In such case he becomes an actor in fact, and plaintiff, in the matter therein set forth, and such counter-claim does not come under the term defense. In effect, it is a cross-action in which the defendant seeks affirmative relief. He is not compelled to seek this relief in an action of ejectment any more than he is required to set up a set-off or counter-claim in other cases. The failure to set up the counter-claim may be ground upon which the court may tax the plaintiff with the costs of the second action, upon the principle that had the matter been submitted in the first action the extra cost would have been avoided. There is no claim or pretense that the matter now in controversy was in issue in the former case and no case has been cited under a statute like our own holding that a defendant must set up his counter-claim in an action against him to recover the possession of land or be barred of the right to recover, and we cannot so hold. The other points in the case are not seriously urged and there is no error in the record. The judgment is therefore THE other judges concur. AFFIRMED. Tingley v. Gregory. R. R. TINGLEY ET AL., APPELLEES, V. J. S. GREGORY ET AL., APPELLANTS. [FILED SEPTEMBER 16, 1890.] Homestead: VALUE EXCEEDING STATUTORY LIMIT: LIENS. In an action in the nature of a creditor's bill to collect a judgment on premises held as a homestead the value of which exceeded $2,000 subject to certain liens, held, that a decree applying the excess over $2,000 subject to the liens existing against the homestead prior to the commencement of the action was supported by the weight of testimony. APPEAL from the district court of Lancaster county. Heard below before CHAPMAN, J. George E. Hibner, and J. S. Gregory, for appellants. Robert Ryan and Thomas Ryan, for appellee Tingley. MAXWELL, J. This is an action in the nature of a creditor's bill brought by the plaintiffs against John S. Gregory and E. Mary Gregory to subject certain real estate in the city of Lincoln, which is occupied as a homestead by said Gregory and wife, to the payment of a judgment. The petition is in the usual form and alleges the recovery of the judgment for deficiency after the sale of certain mortgaged premises, the issue of an execution thereon returned unsatisfied, and that the property in controversy belongs to J. S. Gregory and wife and exceeds in value $2,000. W. W. Gregory is a son of J. S. Gregory and wife and purchased the property while this action was pending. In what way a deficiency judgment came to be rendered against the wife does not appear. The only question as to her liability raised by the answer is in connection with her hus Black v. C., B. & Q. R. Co. band. If she was simply surety for him, the right to render a deficiency judgment against her is very doubtful. As the question is not raised by the pleadings it is probable that the debt was incurred in relation to her own separate estate, and that, therefore, she is liable as principal. On the trial of the cause in the court below the issues were found in favor of the plaintiff and a decree rendered accordingly. A pretty careful reading of the testimony convinces us that the decree is the only one that should have been rendered, as it is in accord with the clear weight of testimony. The excess in value of the homestead over $2,000 is subject to valid liens which existed against it at the commencement of this action. Such liens will be paid in the order of their priority. THE other judges concur. JUDGMENT AFFIRMED. BLACK ET AL. V. CHICAGO, B. & Q. R. Co. [FILED SEPTEMBER 16, 1890.] 1. Common Carriers: LIVE STOCK: ACT OF GOD. 2. -: A snow storm of such violence as to prevent the moving of trains is an act of God. 3. The instructions given and refused considered, and held, properly given and refused. 30 197 61 610 |