CHARLESTON.

BIERN et al. v. RAY et al.

Decided March 9, 1901.

1. RES JUDICATA-Decree on Merits-Estoppel.

A judgment or decree upon the merits of the case is a bar or estoppel against the prosecution of a second suit upon the same demand, not only as to every matter which was offered and received to sustain or defeat the claim, but also any other admissible matter which might have been used for that purpose. (p. 135).

2. EQUITY-Fraudulent Conveyance-Judgment.

B. & F., having obtained a judgment against R. March 11, 1890, and docketed it according to law January 7, 1891, instituted a suit in chancery against R. and S. to set aside as fraudulent a deed from R. to S. dated December 17, 1889, after the debt was contracted, but before judgment, conveying from R. to S. a tract of land containing 34 acres, in which suit the bill was dismissed at the hearing on the merits; and in September, 1897, B. & F. brought another suit to enforce the lien of said judgment upon the undivided one-half interest of R. in an 86 1-2-acre tract of land, as to which there were no allegations in the pleadings in said first suit; and R. tendered a plea of res judicata setting up said former suit as an adjudication of the matters involved in the second suit, and said plea was rejected by the court as insufficient. Held, the plea was properly rejected. (pp. 130, 131). 3. PAROL CONTRACT-Statute of Frauds-Equitable Title.

A purchaser of land by parol contract, having acquired an equitable title therein by part performance of the contract, such as will take the contract out of the statute of parol contracts and entitle him in equity to have the contract specifically performed, may assert, as against the creditors of the vendor, his prior equity; but mere payment of the purchase money is not such part performance as will vest in him such equitable title and superior equity. (p. 137).

Appeal from Circuit Court, Cabell County.

Suit by Biern & Friedman against Catharine Ray and W. H. Smith. Decree for plaintiffs, and defendants appeal.

MARCUM, MARCUM & SHEPHERD, for appellants.

Affirmed.

GEO. M. MCDERMITT and W. K. COWDEN, for appellees.

POFFENBARGER, JUDGE:

The object of this suit is to enforce the lien of a judgment in favor of the plaintiffs and against the defendant Catharine Ray upon an undivided one-half of a tract of land in Cabell County containing eighty-six and one-half acres, which was conveyed to Isaiah Ray and Catharine Ray his wife by deed dated June 1, 1875, since which time Isaiah Ray has departed this life. The judgment, for one hundred and fifty-two dollars and six cents and two dollars and seventy-five cents costs, was recovered before a justice of the peace of said county March 11, 1890, and an abstract thereof filed in the proper office January 7, 1891.

At the time the debt for which the judgment was recovered was contracted, said Catharine Ray was the owner of another tract of land containing thirty-four acres. This tract she conveyed to W. H. Smith by deed, dated December 17, 1889. At February rules, 1891, Biern and Friedman filed their bill in the circuit court of said county, attacking the validity of said deed, charging that it was made with intent to hinder, delay and defraud them in the collection of their debt, and praying that it be set aside and the land subjected by a proper decree to the payment of their judgment, interest and costs. Upon the hearing of said cause, the bill was dismissed, and upon appeal this Court affirmed the decree of the lower court, upon the ground that the pleadings and evidence did not warrant a decree in favor of the plaintiffss. In said case there was no reference made to the eighty-six and one-half acre tract.

On the 20th of September, 1897, Biern and Friedman commenced this suit in said court against said Catharine Ray to subject her interest in said eighty-six and one-half acre tract to the payment of said judgment, alleging in their bill that by virtue of the judgment they have a lien upon said interest which they are entitled to enforce in a court of equity. The bill being taken for confessed, the cause was referred to commissioner Bryan, December 31, 1897, to take an account, on the completion and return of which, the defendant appeared and filed exceptions to the report, and her affidavit explaining her failure to appear. The court sustained the exceptions and recommitted the report, and afterwards the defendant tendered her plea to the bill alleging that the matters involved in this suit had been finally adjudicated and determined in said former suit, and with the plea

she filed a copy of the record of said former suit. The court overruled this plea and thereupon said defendant filed her answer, admitting the existence of the judgment, denying that any execution had been returned thereon nulla bona, and that any officer or person had ever given her notice of such execution or attempted to levy it on her property, and averring that, in 1891 and 1892, she owned ample property to have satisfied it. She also denies that she was the owner of any interest in said land at the date of the rendition of the judgment and alleges that she sold the same to W. H. Smith on December 17, 1889, and attempted to convey it to him, and that he had then paid her in full for it, had taken possession, and l.as ever since been in possession of it. She also relies in her answer upon the adjudication in said former suit.

W. H. Smith also filed his petition claiming to be the owner of said land under said purchase, and praying to be made a defendant; which prayer was granted and it was ordered that the petition be taken and treated as his answer. He claims to have purchased Catharine Ray's interest in said land on the 17th of December, 1889, for a sufficient and valuable consideration paid to her at that time; that she had attempted to convey the same to him by her deed bearing date on that day, but by mistake the same was not so conveyed; that he has ever since been in possession of the land and paid the taxes on it; and that he is informed and believes the matters in controversy in this suit were finally and completely determined in said former suit. To these answers there were general replications; the commissioner made his second report, to which the defendants excepted, because he had reported the judgment as a lien on the land, and that an execution had issued on the judgment and been returned "no property found;" depositions were taken on both sides of the case, and, upon the hearing the court overruled the exceptions, confirmed the report and decreed the land to be sold to satisfy the judgment, giving the defendant sixty days in which to pay the judgment and costs before sale. From this decree, an appeal was allowed.

The appellants contend that the plea of res judicata should have been sustained and the bill dismissed, and in support of this assignment of error, they rely upon Renick v. Ludington, 20 W. Va. 511; Tracy v. Shumate, 22 W. Va. 471; Wandling v. Straw & Morton, 25 W. Va. 692; Sayre v. Harpold, 33 W. Va. 553;

Kingsport v. Rawson, 36 W. Va. 237; Rogers v. Rogers, 37 W. Va. 407; Pickens v. Loves Admr., 44 W. Va. 725, and Watson v. Watson, 45 W. Va. 290.

While the principle of res judicata is far reaching and inflexible, and, as asserted in the cases cited, is almost universally supported and acknowledged by the courts, there is no case in which it has been applied to the extent contended for here. The purpose of the first suit was to set aside a deed conveying a thirtyfour acre tract of land, as fraudulent, and subject the land to the payment of the judgment. This suit is instituted by the same parties as plaintiffs against one of the parties who was defendant in the former suit, and the other defendant comes in and is made a defendant in this suit also. The parties are the same, but the subject-matter of it is radically different from that of the former suit, although in both, the plaintiffs are attempting to collect their judgment. But here they are not, as in the former suit, attempting to set aside a fraudulent conveyance. They are not seeking here to obtain satisfaction of their judgment out of the thirty-four acre tract, but out of another and different tract containing eighty-six and one-half acres, which was not involved in the other cause. It is the same judgment in both cases but the existence of the judgment was not in issue in the former cause, nor was it there contended that it had been satisfied, released or vacated. The object there was not to obtain a judgment, but to subject a certain parcel of real estate to the payment of a judgment, and it cannot be said that it was there determined that the appellees have no judgment against Mrs. Ray. Nothing was decided in that cause, except the issues there raised and such incidental matters as were necessarily involved in those issues. That adjudication forever settles, between the parties thereto, the validity of the deed conveying the thirty-four acre tract to Smith, and every other matter incidental to it, or coming within the purview of the issue made, respecting it, which was decided, or which any of the parties might have had determined.

Even facts in controversy on the trial of an issue, but not necessarily involved in it, though important in its determination, are not settled by the judgment, and are open to controversy in another suit between the same parties. Doonan v. Glynn, 28 W. Va. 715.

In Poole v. Dilworth, 26 W. Va. 583, this Court held: "A decision upon a demurrer, though it be but a decree dismissing

a bill, will be conclusive of every matter whether specially stated in the bill or not, provided it is clear that such matter was necessarily in controversy in the suit and was decided in it, otherwise such decree will not be conclusive of such matter."

In dismissing the bill of Biern and Friedman against Catharine Ray and W. H. Smith, it was not necessary to decide that they had no judgment against Mrs. Ray nor a lien by reason thereof on such lands as she owned. Counsel for appellants say the appellees might have included in their bill in said former suit the necessary allegations respecting their judgment lien on the eighty-six and one-half acre tract and had their rights in respect to it determined in that cause, and, having failed to do so, are now estopped from proceeding to sell it. This is not the meaning of the doctrine of res judicata as enunciated in Sayre v. Harpold, supra, in which this Court holds that, "An adjudication by a court having jurisdiction of the subject matter and the parties is final and conclusive, not only as to matters actually determined, but as to every other matter which the parties might have litigated as incident thereto, and coming within the legitimate purview of the subject matter of the action. It is not essential that the matter should have been formally put in issue in a former suit, but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits."

That was a case in which an injunction was asked by a judgment debtor for the purpose of enabling him to obtain the benefit of a set-off which he might have availed himself of as a defense in the action in which the judgment was obtained. It is in no sense similar to this one. The set-off being matter of defense,

he was bound to plead it. In Rogers v. Rogers in which the doctrine laid down in Sayre v. Harpold is approved, John Rogers having prosecuted a suit for specific performance of a contract under which he claimed to have purchased a two hundred acre tract of land, which was decided adversely to him, afterwards brought an action of ejectment for a moiety of the same land. What possible resemblance does that case bear to this? In that case, the very matter adjudicated in the first suit was attempted to be made the subject matter of the second.

Some of the courts of other states have expressed the doctrine of res judicata in 'terms broader than those in which our courts have declared it. Thus, in Bruen v. Hone, 2 Barb. (N. Y.) 586,