them not be entitled to the relief sought; they may be false, and yet the party entitled to the relief on other grounds. Such allegations are not necessarily included in the issues, in the finding of facts, or in the judgment. Unless specially pleaded they are not adjudicated. Courts have sometimes endeavored to lay down rules, and have made suggestions not altogether harmonions, as to the methods of determining, among these multitudinous allegations, those which constitute the real issues in the cause. Weils, in his work on Res Adjudicata & Stare Decisis, gives probably as good a discussion of this matter as any to be found under the rigid rules of the common law. The same principles, with a more liberal construction, apply in chancery. We quote from Wells: Sec. 200. Our first inquiry herein is, what is to be regarded as a matter in issue? It is plain that there may be subordinate and incidental matters tried during the controversy; but they are not to be considered as the matter in issue in the sense of the rule. The New Hampshire court affords us a clear though not an exhaustive definition, thus: Any fact attempted to be established by evidence, and controverted by the adverse party by evidence, may be said to be in issue in one sense; as, for instance, in an action of trespass, if the defendant alleges and attempts to prove that he was in another place than that where the plaintiff's evidence would show him to have been at a certain time, it may be said that this controverted fact is a matter in issue between the parties. This may be tried, and may be the only matter put in controversy by the evidence of the parties. But this is not the matter in issue within the meaning of the rule. It is that matter upon which the plaintiff proceeds by his action, and which the defendant controverts by his pleadings, which is in issue. The declaration and pleadings may show specifically what this is, or they may not. If they do not the party may adduce other evidence to show what was in issue, and thereby make the pleadings as if they were special. But facts offered in evidence to establish the matter in issue are not themselves in issue, within the meaning of the rule, though they may be controverted on the trial. Deeds which are merely offered in evidence are not in issue, even if their authenticity be denied. When a deed is merely offered in evidence to show a title, whether in a real or personal action, there is no non est factum involved in the matter put in issue by the plea of nul disseisin, or not guilty, which makes the execution of that deed a matter in issue in the case, notwithstanding the jury may be required to pass on the fact of its execution. The verdict and judgment do not establish the fact one way or the other so that the finding is evidence. The title is in issue. The deed comes in controversy directly, in one sense, that is, in the course taken by the evidence it is direct and essential; but in another sense it is incidental and collateral.

It is not a matter necessary of itself to the finding of the issue. It may be made so by the parties.'" This language has been criticised, as confining the matv.29 r.no.5-18

ter in issue and the matter of res judicata in limits too narrow. However that may be, it makes clear the distinction between matters which are merely evidentiary, and matters which constitute the issue. And it is clear that an action of ejectment might have been brought at law, and prosecuted to judgment, for the possession of the realty involved, without making au issue of the validity of Hannah Graham's title deeds; and the right of present possession might have been adjudicated without putting the title in issue. In order to adjudicate and settle in one action all questions in regard to the title and right of possession of the realty in controversy, it was necessary to bring the suit in chancery, and to charge specially the invalidity of Hannah Graham's title deeds. Evidently with this view Culver and Arnold brought their bill in chancery praying a decree giving them possession of the property and declaring them the owners, and declaring Hannah Graham's title deeds void. But it is argued that only the last of these three proposed issues was actually made an issue by the pleadings and adjudicated. This requires a more critical examination of the pleadings. The bill, after showing a regular course of proceedings in the attachment suit leading up thereto, alleges, in paragraph 7, the execution and delivery of the sheriff's deed to Culver and Arnold for the consideration of $910, paid by them at the time of the sale. Paragraph 7 of the answer denies every allegation of paragraph 7 of the bill. Here is an issue of title formed as fairly as ever issue was formed by a declaration of title by deed, and a plea of non est factum. As to Hannah Graham's title deeds, paragraph 9 of the bill charges them to have been fraudulent and to have passed no title. Paragraph 9 of the answer denies every allegation of this paragraphs of the bill. Another distinct issue: Allegations connected with the showing of title, but showing also a right of present possession, are found in several paragraphs of the bill, which are denied by the answer, forming clearly an issue upon such right of possession affirmed on one side and denied on the other, though not so tersely and succinctly as the other issues. Besides, the judgment expressly adjudicates the right of possession; and the judgment is evidence, and conclusive evidence, of what was adjudicated. These three issues evidently cover all the matters in controversy in that suit or in this. It is true an injunction is asked for in this suit; but if the matters included in these three issues be eliminated there will be no bone of contention left. The ground upon which the injunction is asked is involved in the determination of these issues. judgment of the district court in favor of Hannah Graham was an adjudication of all three issues against her. Is that adjudication conclusive? and does it include and bar the homestead right?

The

One of the main rules of estoppel by judgment reads thus: "A judgment rendered by a court of competent jurisdiction on the merits is a bar to any future suit between the same parties, or their privies, upon the same cause of action, so long as

it remains unreversed; or, as otherwise phrased, the doctrine of res adjudicata is plain and intelligible, and amounts simply to this: That a cause of action once finally determined, without appeal, between the parties on the merits, by a competent tribunal, cannot afterwards be litigated by new proceedings, either before the same or any other tribunal." 2 Black, Judgm. § 504. "It is important to be observed, in this connection, that a judgment, when offered as evidence in a subsequent litigation, is either conclusive evidence, suffering no contradiction, or it is of no effect at all; and it is not admissible as evidence of the matter on which it is offered, except where it is conclusive, that is to say, it can never be admissible as tending to prove a given fact, for if it is offered as evidence against a stranger to the former litigation it is not admissible at all, and if against a party or privy it is conclusive." Id. § 505. "It is a general rule that a valid judgment for the plaintiff definitely and finally negatives every defense that might and should have been raised against the action; and this is true, not only with respect to further or supplementary proceedings in the same cause, but for the purpose of every subsequent suit between the same parties, whether founded upon the same or a different cause of action. A party cannot relitigate matters which he might have interposed but failed to do in a prior action between the same parties or their privies in reference to the same subject-matter; and, if one of the parties failed to introduce matter for the consideration of the court that he might have done, he will be presumed to have waived his right to do so. If a party fails to plead a fact he might have pleaded, or fails to prove a fact he might have proven, the law can afford him no relief. When a party passes by his opportunity the law will not aid him." Id. § 754. The doctrine is well stated by Wells in his treatise on Res Adjudicata & Stare Decisis: "Sec. 253. The principle is the same, whether the matter which might have been adjudicated in the first suit would have been therein ground of action, or a defense against plaintiff's claim. Thus the Illinois court, quoting Bigelow on Estoppel with approval, say: 'It follows, also, from the authorities considered, that a valid judgment for the plaintiff sweeps away every defense that should have been raised against the action, and this, too, for the purpose of every subsequent suit, whether founded upon the same or a different cause; nor will equity relieve the defendant from a judgment on any ground of which he should have availed himself in the action at law.' Sec. 254. Thus, in a possessory action, a defendant is under obligation to plead all the titles under which he claims; and if he fails to do so, and judgment is rendered for the plaintiff, the defendant cannot be allowed, in a subsequent suit, to set up a title which he omitted to plead, in order to gain possession. Where an issue is made between the parties to a suit, each is presumed to advance all the evidence in his power to enable the issue to be determined correctly. If one of the parties neglects or does

not wish to introduce a part of his evidence when it is known to him, the issue cannot, after a final decision, be opened to enable him to do so. If this were possible, litigation would be uselessly continued. If a party has four titles, be could institute in succession four different suits instead of having the issue of ownership determined in one suit. This does not conflict with the rule requiring a distinction between matter of the substance of the issue and mere matters of evidence. It means only that a substantial defense must be set up at the first opportunity, and not afterwards." References to numerous cases sustaining these views will be found at the sections quoted. We will not occupy space to quote them. They are abundant and uniform.

But it is urged that the homestead right is favored by the courts, and constitutes an exception to the principles of res judicata. Now, this is matter for very serious consideration. If a judgment of a court of competent jurisdiction expressly upon the question of title or the right of possession of realty does not settle that identical question, even as between the parties to the action and their privies, then would it seem that there are no means adequate to the purpose, and that interests in realty can never be secure; and, not being able to rely upon the judgment of our courts in such matters, we can never know when our interests in realty are safe and reliable. The doctrine of favoring homesteads seems to have been carried to its greatest extent in Illinois; so it will be necessary to examine the decisions of the courts of that state to ascertain whether, in its utmost limit, it is really to the effect that a judgment expressly upon the question of title, or the right of possession, of real estate, is not conclusive as between the parties and their privies, and whether a slumbering homestead right may be resurrected to defeat the judgment. We will not quote the cases at length, which would make this opinion additionally tedious, but will try to state their substance correctly. Over 40 years ago, a way back in February, 1851, it seems the legislature of Illinois yielded to their patriotic impulses, and passed a homestead law to take effect on the 4th day of July following. It exempted to the debtor, being a householder and head of a family, a homestead to the value of $1,000. About six years afterwards, in 1857, the legislature amended this, to the effect that the husband alone could not convey or incumber the homestead; but required that the wife should join, and prescribed how the husband and wife together might incumber or convey the homestead. Under this legislation mortgages were made of homesteads, and suits were brought foreclosing such mortgages, making both husbands and wives defendants; and the court held that a decree of foreclosure in these cases, in the usual form, was not conclusive of the homestead right. The former judgment in the case at bar is not in a case of foreclosure of a mortgage; and the Illinois cases are analogous to this case only as instances of avoiding, pro tanto, in favor

of the homestead right, the effect of the general language of the decree of foreclosure cutting off the right, title, and interest of defendants in such cases. The reason upon which the court founded this acknowledged innovation in the law of the absolute conclusiveness of judgments, according to their terms, was the legal disability of the wife to defend for her own right. The doctrine is stated as follows, in a leading case under this law, decided in 1863: "This mortgage as to the homestead right is like a mortgage in which the wife has not released her right of dower, when sought to be enforced in defiance of that right. Suppose, in such a case, the wife were made a party to a bill to foreclose a mortgage, without any averment that any right of dower existed, or that the wife had released her dower, and a decree passed against the husband and wife, foreclosing the mortgage, and ordering a sale of the premises. None would contend that the right of dower would be affected by such decree, or that a sale under it would convey the premises freed from the right of dower, and for the simple reason that the law has provided a different and an only mode for the release of dower. So here the statute has provided a different and an only mode for the release of the homestead right while the premises are occupied as a homestead. The husband cannot, by failing to make the defense for himself and wife, give the mortgage in which the wife has not released the homestead the same practical effect which it would have had she thus released. This would be to defeat statute and its manifest object by a mere form." Hoskins v. Litchfield, 31 I. 137. The disability of the wife is set up as the basis of the decision, but the illustration of the dower right is not a happy one. Still, we would be loath to criticise this dictum of the supreme court of the great state of Illinois as to the "simple reason" why a decree of foreclosure would not bar the wife's right of dower in the case supposed, but we feel at liberty to quote the language of the court of last resort of the state of New York, giving its view as to the simple reason for the same result. That court says: "And when the authorities say that a judgment is final and conclusive upon the parties to it as to all matters which might have been litigated and decided in the action, the expression must be limited as applicable to such matters only as might have been used as a defense in that action against an adverse claim therein; such matters as, if now considered, would involve an inquiry into the merits of the former judgment. The existence of an inchoate right of dower in the plaintiff would not have been a defense to the action of the receiver for a sale of the premises, and a satisfaction from the avails of the sale of the judgment debt which he represented. It could not, if pleaded and shown, have prevented a judgment substantially that which was rendered." Malloney v. Horan, 49 N. Y. 116. See, also, Whitcomb v. Williams, 4 Pick. 228, and King v. Chase, 15 N. H. 13. An inchoate right of dower may never become a perfect right. So long as the

husband lives, and he may in any case outlive the wife, it is not available as a defense, or as a cause of action. Not so the homestead right. It is a present and continuing right of possession on the homestead property, so long as it is occupied as such under some statutes, or. under other statutes, such as those of New York and Wyoming, an absolute right to a homestead property of a certain value or its proceeds to an equal amount forever, and it is available as a defense to an action for the possession of the property. The real foundation for the doctrine which the Illinois court adopted was the legal disability of coverture. The cases nearly all place it on this ground. And when this disability disappears the doc. trine disappears. The cases decided upon the principle under consideration, as far as they have been called to our attention or fallen under the observation of the court, were decided in 1863 and 1864. Moore v. Titman, 33 Ill. 358; Mooers v Dixon, 35 Ill. 208; Wing v. Cropper, 35 III. 256. The doctrine then disappears. The latest case in which we find it mentioned is Wright v. Dunning, 46 Ill. 271, decided in 1867; and it was there stated merely to say that it was not applicable in that case. In a very lucid and able opinion it is stated with its limitations. Having stated the general rule of the conclusive ness of judgments according to their terms, the court proceeds: "It may, however, be said that the right to hold the home stead forms an exception to the rule. It has been so held to the extent that where the husband and wife are made parties. and they are entitled to homestead rights, and they are not relied upon, that the wife is not concluded or barred from asserting the right; and, inasmuch as she cannot sue alone for the right, that it may be a serted by the husband and wife, notwith standing the decree or judgment. And this exception grows out of the statute conferring the right, which declares that the husband alone cannot release the right, but that he must be joined by the wife. If a husband and wife were to make a mortgage, and the wife were to relin quish her dower, but refuse to release hei right of homestead, and when suit should be brought for a foreclosure, if that right should be cut off by the wife failing to set it up, the husband, by refusing to insist upon it, or to enable the wife to do so, could, in this mode, release the homestead without the assent of the wife, and thus defeat the statute. This court, however. has not held, nor has it intended to hold, that an unmarried head of the family, capable of releasing the homestead, and occupying it, failing to assert the right, where a court is called on to pass upon the right, that he would not be concluded. This is the extent to which the exception has been carried; and when a person, not under disability, is sued, and the homestead right is involved, it will be affected by any neglect to assert it precisely the same as any other right. Appellee was not under disability, and should have set up and insisted upon the right when before the court in the partition suit, and, failing to do so then, she should now be

precluded from claiming the benefit." This was a suit by a widow to enforce her homestead right in property belonging to the estate of her deceased husband. She was entitled, on his death, to both dower and homestead, but, in a suit for partition to which she was a party, had only claimed dower. Held, that she could not afterwards claim her homestead. Observe the language: "And when a person not under disability is sued, and the home. stead is involved, it will be affected by any neglect to assert it precisely the same as any other right." Now consider this in connection with the following statutory provisions: "Sec. 26. If a husband and wife be sued together, the wife may defend her own right; and if the husband neglect to defend she may defend for his right also." Comp. Laws Wyo. 1876, p. 37. This section was in force in Wyoming when the former action was brought, by which the title and right of possession in the property in question was adjudicated as between all the parties in interest in the present action. The section continued in force until replaced by provisions still more sweeping in removing disabilities of married Women to prosecute and defend actions. The ground upon which the Illinois courts proceeded did not exist in Wyoming. All those decisions by the Illinois courts of the character referred to are of date prior to the legislation of the state removing the disability of the wife to sue and defend alone. Such decisions are not in point under statutes such as ours, or such as the Illinois statute of 1874. The effect of such legislation is stated in an Illinois case decided in 1886. The court says: "We cannot think but that the effect of this legislation is to destroy the unity of the husband and wife in one person, as existing at the common law, respecting the person and property rights of the wife. She now loses none of the rights pertaining to natural personsthat of personal liberty, personal security, and private property-by marriage, to any greater extent than does the man. Regarding these absolute rights, they are placed on an equality; the same remedies are open to each to enforce those rights or to redress any injury arising from their violation. The reason of the rule existing at the common law, which deprives her of the right to sue in her own name, has ceased, and the rule itself ought to go with it." Bassett v. Bassett, 20 Ill. App. 543. And the court might well have added that the legislation of that state, as of Wyoming, has provided a new rule which makes effective all the rights which the recent legislation has given her,-the rule that she may sue and defend alone. It is further to be remarked that the Illinois cases establishing the exception to the application of the principal of res judicata in favor of the homestead right of a married woman under the common-law disability of coverture were all cases of foreclosure of mortgages. The judgment or decree in such cases does not profess to pass upon the title or even the right of possession in the property involved. It simply forecloses and cuts off the right, title, and interest of defendants, without

ascertaining or adjudicating, or attempting to ascertain or adjudicate, what the extent of that right, title or interest may be. And that is all that is sold. Purchasers know that they have to look elsewhere to ascertain what right or title they are buying. They do not look to the decree of foreclosure as settling any question of title, or even any possessory right. But in cases like the one at bar, in which the title and right of possession is put in issue, and litigated and adjudicated, they do look to the judgment or decree as the very highest possible evidence upon the question adjudicated, whether it be of the title, or possession, or both. The homestead right, if set up in the former action and proven, would have been a complete defense to the action for the possession of the property. It would have prevented the judgment or decree of the supreme court in favor of Culver and Arnold and against Jeremiah and Hannah Graham for such possession. It cannot be set up now without involving an inquiry into the correctness of that judgment; therefore it became res judicata under the strietest limitation of the rule as stated by Wells, by the New Hampshire court, and also in Malloney V. Horan, supra. See, also, Fischli v. Fischli, 1 Blackf. 360; Ulrich v. Drischell, 88 Ind. 358; Snapp v. Snapp, 87 Kv. 554, 9 S. W. Rep. 705; Lee v. Kingsbury, 13 Tex. 67; Cayce v. Powell, 20 Tex. 767; Tadlock v. Eccles, Id. 782; Chilson v. Reeves, 29 Tex. 281; Nichols v. Dibrell, 61 Tex. 540; and Miller v. Sherry, 2 Wall. 237.

It has been suggested, rather than argued, that the homestead right could not have been pleaded in the former action because it was inconsistent with the plea of title in Hannah Graham. How inconsistent is not apparent. Our statute recognizes the homestead right in the property of the wife as well as in that of the husband. It has been urged in argument that it was incumbent on the complainants in the former action to set up the homestead right of the defendants therein, and that their failing to do so was concealing it from the court, and misleading the court. This is a strange rule of pleading. Complainants cannot know and have no right to dictate what defendants shall rely on in defending actions. Both the title and the right of present possession in the property in question was litigated in the former action. The final result of that litigation was an adjudication adverse to plaintiffs in error. It is now sought to relitigate the same matter on the ground that the plaintiffs in error had a good defense to the former action which they did not present, and that the decree was consequently wrong,-not wrong as being an erroneous decision of the case as presented, but wrong as not being what it ought to have been if such defense had been presented. This is the condition of the matter now, however ingeniously it may be disguised. We cannot know what the judgment and decree would have been if such defense had been presented; but we do know that if any good defense had been presented and established by abundant proof, or confessed by the opposite

party, and the court had erroneously ignored it, and had erroneously decided the case on other grounds, and had rendered a final judgment and decree clearly erroneous, the error could not be corrected in this proceeding. When the supreme court of the territory, the court of last resort, acted upon the matter, however erroneously, no other court could question the correctness of its decision. In short, the jurisdiction of the court in the former action is admitted, and is clear from the pleadings, and its decree cannot be collaterally attacked. It is sought in this action to have that decree declared null and void. It has not been shown to be null and void, but the contrary. It has not even been shown that it is erroneous on the case presented in that action, but erroneous because defendants had a good defense which they withheld. In the language of Wells, supra: "If one of the parties neglect or does not wish to introduce a part of his evidence when it is known to him, the issue cannot, after a final decision, be opened to enable him to do so. And this would seem to be the rule in proceedings directly attacking a judgment, and a fortiori in cases of collateral at tack. All matters of difference between the parties in interest in this action are shown by the petition to have been adjudicated in a former action. The demurrer to the petition was therefore properly sustained. The judgment is affirmed.

GROESBECK, C. J., and MERRELL, J., con

cur.

(12 Mont. 1) BOULDER VALLEY DITCH MINING & MILLING CO. T. FARNHAM.

(Supreme Court of Montana. March 21, 1892.) VENDOR AND VENDEE - BONA FIDE PURCHASERPAROL CONTRACT-SPECIFIC PERFORMANCE.

1. Where a person acquired land of which his grantor claimed to be the equitable owner by reason of a parol contract with the holder of the legal title, but which contract was repudiated by the other party thereto, the fact that the grantee, with full knowledge of the facts, took possession of the land, and made valuable improvements thereon, can add no weight to his claim to the land.

2. Such person is not entitled to a decree of specific performance, though it be shown that part of the purchase money was paid to the agent of the holder of the legal title, payment of part of the purchase price, unaccompanied by other equities, being insufficient to take a parol contract out of the operation of the statute of frauds.

Appeal from district court, Jefferson County; THOMAS J. GALBRAITH, Judge.

Action by the Boulder Valley Ditch Mining & Milling Company against Frank Farnham. Judgment for defendant. Plaintiff appeals. Reversed.

Thomas Joyes, for appellant. W. L. Hay, for respondent.

HARWOOD, J. Action in the nature of ejectment to recover possession of two lots situate in the town of Boulder, Jefferson county. Plaintiff is a corporation organized and existing under the laws of this state. Defendant, by answer, admits that on July 5, 1888, and at all times since that date, the legal title to the lots of

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land described in the complaint was, and now is, in the plaintiff; but denies that at said time, or at any time since, plaintiff was or is entitled to the possession of said land, or any portion thereof; and denies that plaintiff is, or has been since about April, 1883, the owner of said land. Defendant then sets forth in his answer the facts whereby he claims to be the equitable owner of said premises, which facts are alleged, in substance, as follows: That during the month of April, 1883, plaintiff, by and through its duly-authorized officers and agents, entered into a pa rol contract for the sale of said described lots to one John Barry, in consideration of the sum of $40, to be paid by him as the whole purchase price thereof; that plaintiff, at the time of making such bargain or contract, received from said Barry the sum of $10 as part payment of the purchase price of said lots; and that it was further agreed between plaintiff and Barry that the balance of said purchase price should be paid after plaintiff acquired the government title to said lots of land, and that, on payment of said balance, plaintiff should execute and deliver to said Barry a good and sufficient deed of conveyance conveying said lots to him; that in the year 183, after plaintiff had acquired title to said lots from the United States government, said Barry tendered the plaintiff, and offered to pay, the balance of said purchase price, and requested the delivery to him of a deed of conveyance of said lots, but that plaintiff refused to receive said balance of the purchase price, and refused to execute said deed, which refusal plaintiff has ever since persisted in; that said Barry and this defendant have at all times been ready and willing to pay the balance of said purchase price, on delivery of said deed of conveyance; that plaintiff is able to specifically perform said contract of sale, and make said conveyance; that defend. ant has deposited in court, subject to the order of court and plaintiff, the balance of the purchase price of said lots; that on the 24th of March, 1888, the said John Barry, by his deed of that date, duly exe. cuted, bargained, sold, and quitclaimed the said lots to this defendant, and ever since that date defendant has been, and now is, in the actual, exclusive, and adverse possession thereof; that since said date defendant has paid all lawful taxes and assessments levied upon said lots, and erected permanent improvements thereon of the value of $1,600. It is further alleged, as a defense, that at the time of making said contract of sale of said lots to John Barry, in the month of April, 1883, he entered into actual possession thereof, and ever since has held actual, exclusive, and adverse possession thereof, under said contract of purchase, until he conveyed the same to this defendant, since which time this defendant has continued to hold the actual, exclusive, and adverse possession of said lots; and upon this statement of adverse possession defendant avers that plaintiff's action is barred by the provis. ions of section 29, Code Civil Proc. Upon the defense thus set forth defendant demands a decree requiring plaintiff to ex