Barrows v. Kindred,
71 U.S. 399 (1866)

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U.S. Supreme Court

Barrows v. Kindred, 71 U.S. 4 Wall. 399 399 (1866)

Barrows v. Kindred

71 U.S. (4 Wall.) 399


Although when statute abolishing its fictitious forms places the action of ejectment on the same footing with other actions as to the conclusiveness of the judgment, the court will give effect to the same; yet where a plaintiff in ejectment is defeated in one suit, where he claimed through a power of attorney rightly ruled out on the trial as void, he will not be held to be concluded in a subsequent action where he claims under a new deed made by the executors themselves. Having acquired a new and distinct title, he has the same right to assert it without prejudice from the former suit as a stranger would have had it passed to him.

The statute of Illinois regulating the action of ejectment abolishes all fictions. Its twenty-ninth section provides that

"Every judgment in the action of ejectment rendered upon a verdict shall be conclusive as to the title established in such action upon the party against whom the same is rendered and against all persons claiming from, through, or under such party by title accruing after the commencement of such action, subject to the exceptions hereinafter named,"

exceptions not material to be noticed. With this statute in force, the plaintiff in error brought an action of ejectment against the defendant in error in the court below, and upon the trial produced a chain of title, consisting of a patent

Page 71 U. S. 400

from the United States to Whitney, a deed from Whitney to Vose, the will of Vose, and a deed from his executors to the plaintiff. This deed was dated March 18, 1861.

The validity of these several links was not denied. They made the chain of title complete, and prima facie entitled the plaintiff to recover the premises in controversy.

The defendant thereupon gave in evidence the record of a judgment relating to the same premises -- rendered in a former action of ejectment -- wherein the plaintiff in error was the plaintiff, and James R. Gordon was defendant. The judgment was in favor of the latter. This suit was begun on the 12th June, 1858, and ended June 5, 1859.

The defendant also proved that he was in possession as the tenant of Gordon; that in the former action set forth in the record in question, the plaintiff, Barrows, gave in evidence the same patent from the United States to Whitney, the same deed from Whitney to Vose, a power of attorney from the executors of Vose to S. A. Kingsley, authorizing him to sell and convey the premises, a deed from the executors by Kingsley as their attorney in fact, to Scroggs, and a deed from Scroggs to the plaintiff. This power of attorney from the executors and the deed executed by Kingsley were ruled out as void.

The defendant proved further that the deed from the executors of Vose to the plaintiff was given upon the same consideration as the former deed by their attorneys in fact to Scroggs.

The evidence being closed, the plaintiff asked the court to charge the jury that the record and evidence relating to the former trial constituted no bar to his right to recover in this action. This the court refused to do, and thereupon charged that the record in connection with the evidence did constitute a bar. The jury found accordingly for the defendant.

To the admission of each of the several parts of this evidence, to the refusal of the court to charge as asked, and to the charge given, the defendant excepted.

The correctness of these instructions was the question now before this Court.

Page 71 U. S. 402

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