#### JOHN LONG AND WIFE *vs.*ROBERT BAUGAS.

A verdict in an action of Detinue against the plaintiff, on the plea of *non*--detinet, is not sufficient evidence in another suit to shew that the plaintiff had not title to the thing demanded.

If, in such a case, parol evidence can be introduced to shew the grounds on which the verdict was given, this evidence must prove conclusively that the jury could have found their verdict upon no other ground than want of title in the plaintiff.

The cases of *Vines*v *Brovmrigg,*1 Dev & Bat. 239, and *Bennett*v *Holmes, 1*Dev. & Bat. 436, cited and approved.

An appeal from the Superior Court of Law of Iredell county, at Spring Term, 1842, his Honor Judge Pearson presiding.

This was an action of detinue for three negroes. The plaintiffs offered evidence to shew that the negroes had been the property of one Patty Martin, *and read*in evidence *a*bill of sale executed by the said Patty to Elizabeth Gambol, now the wife of the plaintiff Long, for the negroes, dated in March, 1832. It was admitted that in February, 1837, the plaintiffs demanded the negroes of the defendant, who had them in possession and refused to give them up, saying he held them as administrator of Patty Martin. The defendant read in evidence a bill of sale from one William Martin to him, dated in 1836, and also introduced the record of a trial in the county of Wilkes, from which it appeared, that Elizabeth Gambol, now the wife of the plaintiff Long, had brought an action of detinue for the negroes against William Martin and one Samuel Johnson, who pleaded the general issue, which was found by the Jury in favor of the defendants. After this trial, William Martin executed the bill of sale to the defendant for the three negroes, now in controversy; The defendant’s counsel thereupon insisted that the verdict *291and judgment in favor of the defendants in the former action had the effect in law of transferring the title of the plaintiffs in that action to the defendants, under one of whom the present defendant claimed; and, secondly, that the plaintiffs were estopped by the former recovery from setting up title to the negroes against the present defendant, claiming under one of the defendants in the former action. The plaintiff’s counsel denied that the verdict and judgment in the former action operated =in law to transfer the title, or to estop; and further offered evidence to shew that the agent of the plaintiff, Elizabeth, after the verdict had been rendered in that action for the defendants, without her privity or consent, and contrary to the advice of her counsel, refused to move for a new trial or appeal, in consequence of which alleged fraud and collusion, the plaintiff’s counsel contended she was not bound or estopped by the proceedings in the former action. It was also in evidence 'that Patty Martin died, soon after the trial, without issue, leaving William Martin her next of kin. The court charged that the defendant’s counsel were altogether mistaken in the position that the verdict and judgment in the former action had the legal effect of transferring the title of the plaintiff to the defendants in that action; that in an action of trespass or trover, when -the plaintiff recovered and received the value fixed on the property, the law transferred the title to the defendant, in consideration of the value so paid, but such was not the legal effect, when the verdict and judgment were in favor >of the defendant. As to the estoppel, the courtcharged, that, supposing the pleadings to be properly framed, so as to raise the question, whether the plaintiff (Elizabeth) was estopped, by the verdict in the former action, from now setting up title, the court was of opinion that the verdict did not have that effect, as between the present plaintiffs and the defendant. It was a rule of law, that, when parties joined issue upon a fact, and the jury decided the issue, neither of the parties nor their privies in blood nor privies in estate could afterwards be heard to deny it; but to make this rule apply, it was necessary that the fact should be expressty put in issue, or necessarily implied from the verdict. If the verdict in that action *292had been for the plaintiff1, it would necessarily have implied two factsi that the plaintiff had title, and-that the defendants detained; but, as the verdict was in favor of the defendants, jt mjght have been because the plaintiff had no title, or because the defendants did not detain, and of course the verdict could not necessarily imply that the plaintiff had no title, for it might have been on the other ground. Then the counsel for the defendant stated to the court, that, entertaining the utmost confidence in the position first assumed, that a recovery against the plaintiff in detinue tranferred the plaintiff’s title to the defendant, he had deemed it unnecessary to offer evidence as to the point, on which the former trial went off, and asked leave now to offer the evidence. The court considered it irregular, but, under the circumstances, permitted the evidence to be offered. It was then proved that, at the former trial, Patty Martin was examined as a witness for the defendants, and swore that the bill of sale to the plaintiff Elizabeth was obtained from her by fraud, being read to her as a mortgage and not as an absolute deed. It was also in evidence on that trial, that, after the execution of the *bill*of sale to Elizabeth Gambol, Patty Martin borrowed a small sum of money from the defendant Johnson, and gave him a bill of sale for all the negroes to secure it, after which, in'' 1835, Johnson took the negroes into possession. On that trial the plaintiff, besides proving the due execution of the bill of sale, proved that she had paid upwards ojf one hundred dollars of the consideration money, and for the balance became bound to support Patty Martin during her life. There was no evidence on that trial of any title in the other defendant, William Martin, or that he had ever had the ne-groes in possession. The plaintiff’s counsel objected to this evidence, on the ground that the former verdict, if relied on as an estoppel, must speak for itself, and could not be aided by proof as to what was then in evidence. The court proceeded to charge the jury, that how the evidence, as to what took place on the former trial, if admitted, would affect a case, wherein Johnson was defendant, it was unnecessary to en-quire. But in this case, as the defendant claimed under William Martin, this evidence would not enable him to estop *293She plaintiffs; for the jury in the former action might well hare found a verdict in favor of William Martin, upon the ground that he set up no title, did not have the negroes in possession, and so did not detain them, without, as between him and the plaintiff, passing upon the plaintiff’s title: and, moreover, the defendant, William Martin, having no title, could not, after the trial, convey to the present defendant, so as to give him the benefit of the estoppel as a privy in estate. The court then left the questions of fact to the jury, who found in favor of the plaintiff. A motion was made for a new trial for error in the charge as to the operation of the former recovery, and as to the estoppel. The motion was refused, and, judgment having been rendered pursuant to the verdict, the defendant appealed.

*Boy den*for the plaintiff.

*Alexander*for the defendant.

Ruffin, C. J.

The position, that the property of the plaintiff, m an action of detinue, in the thing sued for, is transferred to the defendant in the action, by a verdict and judgment for the defendant upon *non-detinel*pleaded, is founded upon a total misconception. If the judgment be for the plaintiff, and the defendant pay and the plaintiff receive the assessed value, that works a transfer of the property. *Vines*v Brownrigg, 1 Dev. & Bat. 239. The maxim is, *saludo predi empdonis loco habetur.*

Our opinion likewise is, that the judgment in the suit brought by the present *feme*plaintiff against William Martin and Samuel Johnson, which is pleaded in this action by way of estoppel, is not a bar to the recovery by the plaintiffs. A judgment is only conclusive when it is directly on the point in one suit, which comes in question in another suit. It is not even evidence of matter to be inferred only by argument from it. This doctrine, which was thus delivered by Chief Justice De Grey in the *Dutchess of Kingston's*case, this court had occasion to consider a few years past in *Bennett*v *Holmes,*1 Dev. & Bat. 436, and upon it we felt it our duty to hold that a verdict and judgment, upon not guilty pleaded, in trespass *quare clausum*fregit, was not *294competent evidence of title in another action of trespass between the same parties or their privies. The same reason would seem to hold here; for the plea of *non detinet*is fully as broaci and as far from, drawing the controversy to the single point of title, as *not guilty*in trespass. The only difference is, that in the latter action, there is an established special plea, *liberum tenenienium,*which does precisely put the title in issue, and on which it is, therefore, necessarily determined; while in detinue there is no such plea. That the verdict was given for the defendants in the former action, might have been, as stated in his Honor’s reasoning, because the plaintiff had no title, *or*because the defendants did not detain. Indeed an action of detinue against two cannot be maintained except upon a joint detainer, as we have had occasion to say at the present term in the case of *Slade*v *Washbourne*& *Washbourne.*It is apparent therefore, that it is a matter of inference only from the former judgment, that the plaintiff in that action had no title to the slaves sued for therein; and, indeed, that it is a matter of remote inference only. So, we are clearly of opinion that the judgment *per se*is not an estoppel to the plaintiffs in the present suit.

It is an opinion expressed, both judicially and in elementary works, that, to render a record evidence, it must appear from the record itself, that the fact now in issue was directly in issue in the former suit and decided. If that opinion be correct, it is decisive against the estoppel in this case, for the reasons already given. But there are other authorities, and particularly those cited at the bar from a sister State. *Wood*v *Jackson,*3 Wend. 27; *the same case in error,*8 Wend. 9. *Lawrence*v *Hunt,*10 Wend. 80, that a former judgment may be pleaded with the necessary averments, or given in evidence, and sustained by parol proof, to shew the grounds upon which it proceeded, where such grounds from the form of the issue in the first suit, do not appear from the record itself. Those apposite positions present a question of great importance, which seems not to be settled. We do not propose to go into it; for it is not necessary to the determination of the case under adjudication. For, if the record can be aided by the averments and parol evidence, as held in New *295York, we find, according to those cases, that it can only be", when from the form of the issue the record does not and could not shew the grounds upon which the verdict proceeded, and when the grounds alleged are such as might le-gaily have been given in evidence under the issue, and were given in evidence, in such way as to make it appear from the issue and verdict, that those facts and grounds must have been necessarily and directly in question and determined, and that, upon those grounds, and no other, the verdict must have been found. It is distinctly stated, that a verdict will not be an estoppel, merely because the testimony in the first suit was sufficient to establish a particular fact. It must appear, that was the very fact, on which the verdict was given, and no other.

In the case at bar, under averments, in the plea, of the identity of the parties -and subject matter of the two suits, and that the question in the former suit was upon the title of the plaintiff therein to the slaves, under a conveyance from Patty Martin, and that the plaintiffs in this suit claim and seek to recover the same slaves in this action, under, and by force of, the same title, the defendants were allowed to give parol evidence. But upon looking at it, we see at once that it comes not within the doctrine of the cases, under which it was offered. It appears that, on the first trial, Patty Martin deposed, that the deed to the plaintiff was obtained from her by fraudulently reading it as a mortgage, and not as an absolute deed. The deed is for five negroes, and expressed to be made on the consideration of $590; and the plaintiff proved that she had paid $100 thereof, and in lieu of the residue was to support Mrs. Martin during life. It was further given in evidence for the defendants on that trial, that, after the deed to the plaintiff, the defendant, Johnson, lent a sum *ol*money to Mrs. Martin, and to secure it took a mortgage on the negroes, under which he took posssession of them and detained them until the suit was brought; and the other defendant, William Martin, had never set up any title, nor had any possession of the negroes. From that state of facts, it is not easy to say upon what ground the verdict was found; much less does it appear, that it must *296have been given on the ground of the defect of title in the piaintiff and on no other. It might have proceeded on the ground, that the plaintiff had not given a full price for the slaves, but that the deed to her was to be treated as voluntary and void as against Johnson, *á*mortgagee from the vendor, continuing in possession of the negroes. If so, and that mortgage has been satisfied, the plaintiff’s title would as being good against the mortgagor, again revive; and, as we hear nothing of that mortgage on this trial, it is probable the debt has been paid and a release executed. The verdict might also have been founded on the fact, that the two defendants did not *jointly*detain, as the plaintiff alleged they did, and as they proved they did not. We cannot, indeed? tell on what the jury went: possibly, upon either or all of those grounds together. It is certain that the evidence does not shew any.more than the record itself did, that the verdict was given necessarily on the very fact, that the deed to the plaintiff had been fraudulently obtained by falsely reading it, or that, for any cause, the plaintiff had no title.

Per CuniAMj ' Judgment affirmed.