#### Rounseville Spooner *versus*Humphrey Davis *et ux.*

A verdict that the demandant, when he took the deed under which he claimed, had knowledge of a prior deed of the same land to the tenant, does not *estop*the demandant to deny that there was such a prior deed.

*Writ of right*to recover certain land in Fairhaven.

The tenants pleaded, first, the general issue.

The second plea was, that one Alden Spooner was seised of the land in fee, and that he conveyed the same to Walter Spooner by his deed duly executed in fee, from whom it descended to the wife of Humphrey Davis, and that afterward Alden Spooner conveyed the same land to the demandant, he, the demandant, “ then well knowing that Alden Spooner had before that time conveyed the same premises to Walter Spoon-er in manner aforesaid,” and that the tenants thereafterward entered on the demandant and ejected him.

*153
      *Oct. 22d.*

*Oct. 25th*

The demandant replied, that Alden Spooner did not convey the land to Walter Spooner, as alleged in the plea; with a tender of an issue to the country.

The tenants rejoined, that the demandant was estopped to say that Alden Spooner did not, by his deed duly executed, convey to Walter Spooner, because the tenants had heretofore impleaded the demandant in an action of ejectment, in which the demandant pleaded, that at the time when Alden Spooner conveyed the demanded premises to him, he, the demandant, “ had no knowledge that Alden Spooner had before that time conveyed the demanded premises to Walter Spooner that to this the tenants replied, that the demandant did know that Alden had before conveyed to Walter ; that an issue was joined thereon, and that the jury found that the demandant, at the time of the conveyance to him, “ had knowledge that Alden Spooner had before that time conveyed the demanded premises to Walter Spooner and that judgment was rendered according to the verdict.

The demandant demurred generally.

*L. Williams*and Warren,

in support of the demurrer, said that the point in issue in the former action, namely, whether the demandant had knowledge of the conveyance to Walter Spooner, was not the precise point now raised, namely, whether there was such a conveyance ; that the same evidence would not be applicable to the two questions ; that the validity of the conveyance was not directly put in issue before, and in estoppels nothing can be taken by argument or inference. They cited *Outram*v. *Morewood,*3 East, 346 ; 5 Bac. Abr. 428, *Pleas*§c., ill ; *Skipwith*v. Green, 8 Mod. 312 ; Com. Big. *Estoppel, E*4 ; Bane’s Abr. 383, § 21 ; Co. Litt. 352 *b.*

*Holmes*senior and *W. Bay lies, contra,*

said the jury could not have found that the demandant knew of a conveyance, without also finding that there was a conveyance. Knowledge cannot be predicated of what does not exist. The fact that there was a deed is not a matter0of inference, but it lies at the fomidation of the finding of the jury. *Mosley*v. *Coldwell,*1 Ld. Raym. 430 ; 2 Wms’s Saund. 10, note 14.

Wilde J.

delivered the opinion of the Court. The ques

*154tion raised by the demurrer in this case is, whether toe demandant is estopped to traverse or deny the conveyance set up by the tenants from Alden Spooner to Walter Spooner ; and we are of opinion that he is not. The pleadings in the former action did not bring in question the validity of that conveyance. The question in issue was, whether the present demandant, at the time he purchased of Alden Spooner, had any knowledge or notice of the prior conveyance to Walter. To support the affirmative of that issue, it was only necessary to prove that the demandant had notice of such prior conveyance. But it was not necessary to prove the execution of the deed, or to establish its validity. So that the evidence which would be sufficient to maintain the issue in the former action, would wholly fail to prove the fact traversed in this case. The former verdict, therefore, is not conclusive as to the fact in question ; it is conclusive only as to the fact distinctly put in issue. 3 East, 346. The express point now raised was not decided in the former action; and estoppels are not to be multiplied or extended by inference. The rejoinder therefore is clearly insufficient, and the case must stand over for trial on the general issue.1

See *Standish*v. *Parker,*2 Pick. (2nd ed.) 22, 23, notes; Chitty on Contr (4th Am. ed.) 612, and notes.