Opinion
May 1812.
The record of a judgment in trover between two persons, is not evidence in a similar suit for the same property between two other persons, each of whom claims under one of the former litigants, and the defendant, against whom it is offered, became a purchaser from the former plaintiff pending the litigation. [See Edwards v. McConnel, Cooke, 305.]
A purchaser of property in litigation, pending the litigation, is, it seems, not a party or privy to the litigation, so as to make the record of the suit evidence against him. But it is otherwise, if he purchase after the suit.
Appeal, in the nature of a writ of error, from Jefferson Circuit Court. —
This was an action of trover brought for the recovery of the value of two negroes, Aaron and Esther. The plaintiff claimed title to them under John Lanning; the defendant claims title under Tobias Wilhelm. Wilhelm had commenced an action against Lanning for the recovery of Esther; during the pendency of that action Wilhelm sold, conveyed by bill of sale, and delivered possession of the negroes to Bradford. The suit which had been commenced afterwards progressed, was tried, and verdict and judgment was obtained in favor of the then defendant, Lanning. Upon the trial of this cause, Killingsworth, for the purpose of supporting his title to Esther, offered, as evidence, a copy of the verdict and judgment in the former action; this was objected to, and the Circuit Court rejected the evidence; to this opinion exception has been taken, and the cause removed into this court.
For the plaintiff it has been argued, that the parties in this cause are to be viewed as privies to the parties in the former, and, therefore, the record ought to have been received.
The question here presented is entirely different from what it would have been if these parties had purchased subsequent to the trial of the former suit. Bradford cannot be viewed in the light of a privy against whom this evidence could be used. At the time of that trial, Wilhelm, under whom Bradford claims, had no right to the property; that right and the possession was in Bradford; he was no party to the suit, could not be heard in it; by himself or counsel, could neither produce testimony nor cross-examine that produced on the other side. Wilhelm may have failed in that suit, either from negligence or design, and Bradford, who was the party then interested, ought surely to receive no prejudice thereby. Any declaration or acknowledgment that Wilhelm could make, after the sale to Bradford, could not prejudice Bradford's title. 5 Johns. 426; 1 Hay. 396. How then should a recovery against him be received as evidence? It appears to me the principle is the same; in either case the evidence ought not to be received.
The judgment of the Circuit Court ought to be affirmed.
NOTE. — This case is referred to in Calloway v. Willie's Lessee, 2 Y. 3, 4, as cited by counsel, but as not upon the point. — ED.