Opinion
No. 36722.
March 22, 1948. Suggestion of Error Overruled May 10, 1948.
1. JUDGMENT.
Where suit for confirmation of title was decided on general demurrer which was sustained for failure of complainant to show title in himself, the decision was on the merits as to the complainant's want of title.
2. ACTION.
A litigant may not try his case piecemeal, or set up grounds available on former trial.
3. JUDGMENT.
Where an issue is positively excluded from former decision, the fact that it was by pleadings actually included or necessarily inherent does not incorporate it into the adjudication.
4. JUDGMENT.
Where complainant in former suit for confirmation of title prayed for adjudication of title with damages and stated that complainant had right of possession to property and that his right accrued in 1942 and each of such allegations, save confirmation of title, was set out in subsequent ejectment suit in which right of possession was based solely upon an asserted legal title existing at time the confirmation suit was heard, judgment against complainant in confirmation suit was res judicata in ejectment suit (Code 1942, sec. 1326).
APPEAL from the Circuit Court of Washington County.
E.B. Taylor, of Greenville, for appellant.
The original bill in the chancery court case forms no part of this case, in that a full and complete amended bill was filed in that case and the original bill was made no part thereof.
Bank of McLain v. Pascagoula Nat. Bank, 150 Miss. 738, 117 So. 124; Griffith's Mississippi Chancery Practice, Sec. 308.
The chancery court was without power or authority to grant relief other than shown by the pleadings in the case, and as prayed for in the bill.
Griffith's Mississippi Chancery Practice, Sec. 612.
One theory of a case may not be advanced in the bill and relief be granted upon another theory.
Griffith's Mississippi Chancery Practice, Sec. 613.
Dismissal of a suit upon sustaining a demurrer or upon the cause of faulty pleading is not a determination of a cause upon its merits, and is therefore not res judicata to the filing of a new suit.
Alabama V.R. Co. v. McCerren, 75 Miss. 687, 23 So. 423; McCerrin v. Alabama V.R. Co., 72 Miss. 1013, 18 So. 420; Hart v. Picard, 75 Miss. 651, 23 So. 450; Agnew v. McElroy, 18 Miss. 552; Perry v. Lewis, 49 Miss. 443; Wilson Gray v. May Pants Co. (Miss.), 37 So. 813; Griffith's Mississippi Chancery Practice, Secs. 286, 288; 34 C.J. 794, Sec. 1212, p. 894, Sec. 1302.
The burden of proof is upon appellee to show by the record that the two suits are the same, and that his plea of res judicata is a good defense to the ejectment suit.
Eminent Household of Columbian Woodmen v. Bunch, 115 Miss. 512, 76 So. 540; Agnew v. McElroy, supra; Viator v. Stone, 201 Miss. 487, 29 So.2d 274, 658; 15 R.C.L. 1049, Sec. 531; 34 C.J. 1070, Sec. 1513.
The issue of res judicata is to be tried by the court and not by a jury.
Miller v. Buckley, 85 Miss. 706, 38 So. 99.
The appellant is not estopped from prosecuting his ejectment suit because of the fact that the question here presented might have been litigated in the chancery court case.
Davis v. Davis, 65 Miss. 498, 4 So. 554; Dunlap v. Edwards, 29 Miss. 41; Hubbard v. Flynt, 58 Miss. 266; Bunckley v. Jones, 79 Miss. 1, 29 So. 1000; Scottish-American Mortgage Co. v. Bunckley, 88 Miss. 641, 41 So. 502; Hardy v. O'Pry, 102 Miss. 197, 59 So. 73; Lion Oil Refining Co. v. Crystal Oil Co., 171 Miss. 36, 156 So. 593.
If there is an estoppel by former judgment, such estoppel must be mutual.
34 C.J. 988, Sec. 1407; 15 R.C.L. 956, Sec. 432.
If appellant was without knowledge of the facts essential to his title to the land sued for at the time he filed his chancery court case, but after the chancery court case was terminated he discovered the true facts as to his title, he would not be estopped from asserting his true title to the land.
Orr Shoe Co. v. Edwards, 111 Miss. 542, 71 So. 816.
The chancery court, under the pleadings and record in that case, was without power or authority to render a final decree in favor of either complainant or defendant, in that no title to the land in controversy had been shown as provided by statute.
Code of 1942, Sec. 1325.
Ernest Kellner, of Greenville, for appellee.
A final adjudication resulting from sustaining a general demurrer is res adjudicata on the merits and bars a new action or suit.
Neill v. Wells, 164 Miss. 372, 145 So. 341; Grant v. Dotson, 193 Miss. 577, 10 So.2d 680; Gilchrist-Fordney Co. v. Keyes, 113 Miss. 742, 74 So. 619; Code of 1942, Sec. 1325.
It is a fundamental principle of jurisprudence that material facts or questions which were in issue in a former action, and were there admitted or judicially determined, are conclusively settled by a judgment rendered therein, and that such facts or questions become res judicata and may not again be litigated in a subsequent action between the same parties or their privies, regardless of the form the issue may take in the subsequent action, whether the subsequent action involves the same or a different form of proceedings, or whether the second action is upon the same or a different cause of action, subject matter, claim or demand, as the earlier action. In such cases, it is also immaterial that the two actions are based on different grounds, or tried on different theories, or instituted for different purposes, and seek different relief.
Miller v. Buckley, 85 Miss. 706, 38 So. 99; Yazoo M.V.R. Co. v. Sibley, 111 Miss. 21, 71 So. 167; Cotton v. Walker, 164 Miss. 208, 144 So. 45; Fair et al. v. Dickerson, 164 Miss. 432, 144 So. 238; 15 R.C.L. 973; 30 Am. Jur. 920; 34 C.J. 868.
Appellant brought suit in ejectment demanding possession under a deed from Barham dated October 29, 1931. The declaration alleged that the "right of possession of the same accrued on the 2nd day of April 1942."
Plea of res judicata was interposed setting up the judgment in Williams v. Patterson, 198 Miss. 120, 21 So.2d 477. The parties and part of the land were involved in the former adjudication. Replication to the plea asserts that the plaintiff "is suing upon an entirely different source of title," to-wit, the deed from Barham.
The former case was decided upon general demurrer which was sustained for failure of complainant to show title in himself. It was therefore a decision upon the merits as to complainant's want of title.
We proceed therefore to examine whether the former judgment is res judicata. In the prior action, complainant attacked the title of Barham as a cloud upon his title. The deed from Barham was of record when the confirmation suit was instituted. Appellant here grounds his right of possession not upon a title subsequently acquired, nor upon a lesser right than ownership, but upon a fee simple title existing prior to the filing of the bill to confirm title. Appellant may not be allowed to try his case piecemeal, or to set up grounds available upon the former hearing. As stated in Manly v. Kidd, 33 Miss. 141, 148: "And it is against the policy of the law and not to be tolerated, that parties should first make an experiment in litigation to assert their rights upon one ground, and failing in that, resort to another form and upon another ground, to assert the same right, and accomplish the same substantial end." See also Cocks v. Simmons, 57 Miss. 183, 197; Hannum v. Cameron, 20 Miss. 509, 513.
It was said in Chiles v. Champenois, 69 Miss. 603, 13 So. 840, 841: "There is nothing peculiar to the proceeding by bill to cancel clouds upon titles, by reason of which a greater or less force should be given to the decisions of the courts on such bills. Whether one proceed in equity to cancel as a cloud the adversary title, or bring an action at law to recover on the legal title, the judgment of the court upon the issues presented must be equally conclusive. In either case, a court of competent jurisdiction applies the law to the facts proved and involved in the material issue on which the right of the parties rests, and this is adjudication." See also Merrill v. Stowe (Me.), 3 A. 649; Van Fleet, Former Adjudication, p. 808, citing Chiles v. Champenois, supra. These principles find frequent support in our decisions down to the present day.
We take notice of Scottish-American Mortgage Company v. Bunckley, 88 Miss. 641, 41 So. 502, 117 Am. St. Rep. 763, cited by appellant. Failure carefully to appraise the decision in the light of the particular facts could be disturbing. It was held that failure to establish title upon two certain deeds would not be res judicata in a second suit founded upon a third. The key to the decision, which otherwise would run counter to subsequent holdings, is in the concluding paragraph of the former adjudication. Bunckley v. Jones, 79 Miss. 1, 9, 29 So. 1000, 1003. It is there stated: "Since the two deeds under which appellant claims title are shown to be insufficient to sustain his case, we are indisposed to discuss the other questions raised by a construction of the deeds of May 10, 1847, as it is unnecessary to a correct determination of this appeal."
The principle is firmly established that where an issue is positively excluded from the former decision, the fact that it was by the pleadings actually included or necessarily inherent does not incorporate it into the adjudication. 50 C.J.S., Judgments, Sec. 659; 30 Am. Jur., Judgments, Secs. 181, 182.
The inapplicability of Lion Oil Refining Co. v. Crystal Oil Company, 171 Miss. 36, 156 So. 593, cited by appellant, is seen in the fact that right of possession was decreed in cross-complainant and the bill dismissed. Damages for use and occupation were not involved in the cross bill. Judgment later for the damage was consistent with the adjudication of possession. In the instant case, the right of possession has been adjudicated adversely to appellant.
Nor is Hart v. Picard, 75 Miss. 651, 23 So. 450, at variance with the views herein expressed. The former suit was filed by Mrs. Hart to cancel as a cloud upon her title a certain tax deed. Failing to show requisite title in herself, the bill was dismissed. Examination of the validity of the tax deed was never reached. A second suit by the owner of the tax title brought in issue the validity thereof for the first time. The merits of complainant's title alone were adjudicated, in the prior action.
Code 1942, Section 1326, provides that in suits to try title the court shall have jurisdiction to "decree possession and to displace possession, to decree rents and compensation, etc. . . . although the legal remedy may not have been exhausted or the legal title established by a suit at law." In the former suit, appellant prayed for adjudication of title with damages. He stated that he "has the right of possession" thereto, and that his right accrued in 1942. Each of said allegations, save the confirmation of title, are set out in the ejectment suit. The right of possession is based solely upon an asserted legal title existing at the time the former case was heard. All relief here ought is based upon a claim of legal title.
We are of the opinion that the trial court was correct in sustaining the plea of res judicata.
Affirmed.