337. But whether prosecuted in their own name or in Huntley's name, they are the real parties in interest as plaintiffs. Comparing, then, the present suit with the issue formed in the prior one on the separate defense pleaded by Alfred Holt, it appears that the parties plaintiff are identical in legal right. The defendant is the same, and the subject-matter is the very same that was then tried and decided; so that this case is brought within the strictest definition of an estoppel by a former judgment,-identity of parties and identity of the cause of action: Supples v. Cannon, 44 Conn. 424; Munson v. Munson, 30 Conn. 433; Hungerford's Appeal, 41 Conn. 322.

"It is an established rule in the administration of justice that all controversies between parties, once litigated and fully and impartially determined, shall cease; and to that end no fact involved in such litigated controversy, shown by the record to have been material to its determination and to have been put in issue and decided, whether the proceeding was at law or in equity, shall again be litigated between the same parties" Butler, J., in Munson v. Munson, 30 Conn. 433.

There is no error in the judgment appealed from.

RES JUDICATA. -A judgment rendered upon the merits is co-extensive with the issues upon which it is founded, and conclusive between the parties thereto, not only as to matters actually litigated, but as to every other matter directly at issue by the pleadings which the defeated party might have litigated: Lorillard v. Clyde, 122 N. Y. 41; 19 Am. St. Rep. 470; note to Gould ▼. Sternburg, 15 Am. St. Rep. 142; Windett v. Life Ins. Co., 130 Ill. 622; McCullough v. Dashiell, 85 Va. 37; Perry v. Mills, 76 Iowa, 622; Lamb v. McConkey, 76 Iowa, 47; Green v. Sanborn, 150 Mass. 454; Thompson v. Lester, 75 Tex. 521. But a judgment does not operate as an estoppel with respect to matters not determined therein, and which could not have been properly litigated under the issues: Munson v. Bowen, 80 Cal. 572; Ryan v. Martin, 104 N. C. 176; Louisville etc. R'y Co. v. Cauley, 119 Ind. 142.

HAUSSMAN V. Burnham.

[59 CONNECTICUT, 117.]

-Husband and wife may,

HUSBAND AND WIFE - CONVEYANCES BETWEEN. — during coverture, make contracts for the conveyances of property between themselves which are valid in equity; and although they will be examined with great care, they will always be upheld when found to contain the essential requisites. HUSBAND AND WIFE CONVEYANCES BETWEEN CONSIDERATION. promise by a married woman to reconvey certain property to her husband upon his request, in consideration of his conveyance of the same to her through a third person, and reserving to the husband a life use

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therein, is based upon a valuable and adequate consideration, and is enforceable in equity. HUSBAND AND WISE - CONVEYANCES BETWEEN. - A contract of a married woman with her husband, for the benefit of herself or her estate, is bind. ing in equity, and the estate affected thereby need not be held by her to her sole and separate use. HUSBAND AND WIFE-CONVEYANCES BETWEEN STATUTE OF FRAUDS. If a married woman contracts to reconvey certain property to her hus band upon his request, in consideration of his conveyance of the same to her through a trustee, the statute of frauds does not apply. Such contract need not be in writing, as part of it has been fully performed by one of the contracting parties, nor is it objectionable because not to be performed within a year, when no time for performance is stipulated. HUSBAND AND WIFE-CONVEYANCES BETWEEN MISTAKE. Where a married woman agrees to reconvey property to her husband upon his request, in consideration of a conveyance of the same to her, but the husband fails to join the wife in such reconveyance, owing to the erroneous advice of his counsel, equity will relieve against the legal mistake, and order a reconveyance, unless there are substantial reasons to the contrary. Husband AND WIFE — CONVEYANCES BETWEEN -WAIVER. Where a wife agrees to reconvey property to her husband upon his request, in consid. eration of his conveyance of the same to her, her subsequent consent and attempt to reconvey constitute a waiver of a former request to reconvey, and such waiver attaches to those who claim under or through her. HUSBAND AND WIFE-CONVEYANCES BETWEEN — DUTY OF HEIRS TO RECONVEY.- - Where a wife promises to reconvey property to her husband upon his request, in consideration of his conveyance of the same to her, the liability to reconvey at any time upon request constitutes an equity which attaches to it while in her hands, and her heirs take and hold it subject to the same equity, which can be enforced against them to the same extent that it might have been enforced against her during her lifetime.

HUSBAND AND WIFE-CONVEYANCES BETWEEN -PAROL PROOF OF CONSIDERATION. Where the real consideration for a conveyance from husband to wife is different from that expressed in the deed, it may be shown by parol, and the variance does not impair the validity or change the effect of the conveyance.

HUSBAND AND WIFE-CONVEYANCES BETWEEN - PROMISE TO RECONVEY. - Where a wife promises to reconvey certain property to her husband upon his request, in consideration of a conveyance of the same to her, reserving the use of a life estate in the property to him, the promise to reconvey is not inconsistent with the interest in the premises reserved in the deed to her.

HUSBAND AND WIFE-CONVEYANCES BETWEEN, WHETHER VOLUNTARY. Where a wife agrees to reconvey property to her husband upon his request, in consideration of his conveyance of the same to her, such reconveyance is not voluntary so as to prevent equity from enforcing it, in the absence of proof of her indebtedness, or that creditors were defrauded or prejudiced.

JURISDICTION WAIVER OF SERVICE. — A non-resident who voluntarily appears by counsel, and without interposing any objection to the juris

diction of the court pleads to the merits of the case, thereby waives service of the complaint upon himself. HUSBAND AND WIFE-CONVEYANCES BETWEEN ENFORCEMENT OF PROMISE TO RECONVEY. - Where a married woman promises to reconvey property to her husband upon his request, in consideration of his conveyance of the same to her, equity will enforce such promise, although she has made an ineffectual attempt to reconvey.

SUIT to correct a deed and to compel the conveyance of certain real estate. Jacob and Mary Haussman were married in the year 1867. Each had been married before, and each had children by a former marriage. On December 11, 1885, Jacob, being in feeble health, and not expecting to outlive his wife, and intending to make provision for her after his death, conveyed the premises in dispute by quitclaim deed to an attorney at law, reserving to himself the use, occupation, and control during his life. As part of the same transaction, and on the same day, his grantee, by release deed, conveyed the land to Mary Haussman. The consideration expressed in each of the deeds was, "divers good causes and considerations, and especially one dollar" received by the grantor. The proof showed that the real consideration for the deeds was a prior promise made by Mary to Jacob that she would reconvey the land to him whenever he should request her to do so. In July, 1888, Jacob requested her to reconvey the land to him, and on the 26th of that month she attempted to comply with his request, and made a release deed of the land, which was properly executed by her. This deed was never jointly executed by herself and her husband, and was never executed by her husband at all. Mary died soon thereafter, and neither she nor her husband, at any time during her life, knew that it was necessary that her deed of release, which was made to an attorney, who in turn conveyed to Jacob, should have been executed jointly by herself and her husband. This mistake arose through relying upon the erroneous advice of an attorney, who told them that the deed so executed by her would convey her interest to her husband. Since this suit was instituted, Jacob Haussman has died intestate. The controversy is therefore between his heirs as plaintiffs and the children of Mary Haussman by a former marriage as defendants. There was no issue of the marriage between Jacob and Mary Haussman. The case was reserved for the judgment of this court.

W. F. Henney, for the plaintiffs.

R. Welles and E. Johnson, for the defendants.

PHELPS, J. The plaintiff claimed in his complaint,1. Pecuniary damages; 2. A reformation of the deed from Mrs. Haussman to the attorney, so as to join Mr. Haussman as grantor with his wife; 3. The removal of the cloud on the plaintiff's title by commanding the defendants to convey to Mr. Haussman any title or interest in the premises which they may have; and 4. Such other and further relief as to equity may appertain. The question is, whether by this action there is a remedy for those who, by the aforesaid mistake, have been deprived of an estate which was by both parties intended for them, and which but for such mistake they would have received.

It is scarcely possible that the case could be made which would present clearer or stronger equities, and it would seem that the consequences of such a mistake should be relieved against, unless there are insurmountable obstacles in the way; and a court of equity should be astute and diligent in its efforts to prevent such manifest injustice.

The underlying question in the case is, whether the promise by Mrs. Haussman to reconvey the property was valid. That the legal and equitable title, subject to the reserved life estate in Mr. Haussman, was vested in her, is conceded. Indeed, the defendants claim and derive whatever title or interest they possess in the property through the deed from Mr. Haussman to his wife, which was made pursuant to the agreement between them, a part of which was the promise of Mrs. Haussman to reconvey.

That husband and wife may, during coverture, make contracts for the conveyance of property between themselves which will be good in equity has long been settled, both in Great Britain and here. The court will examine them with great care, and when they are found to contain the essential requisites which exist in the case before us, they will always be upheld: Slanning v. Style, 3 P. Wms. 334; Lucas v. Lucas, 1 Atk. 270; Lady Arundell v. Phipps, 10 Ves. 146; Livingston v. Livingston, 2 Johns. Ch. 537; Shepard v. Shepard, 7 Johns, Ch. 57; 11 Am. Dec. 396; Wallingsford v. Allen, 10 Pet. 594; Hinman v. Parkis, 33 Conn. 197, 198.

The consideration for the promise of Mrs. Haussman was the conveyance to her, and the provision for her support secured by it. That it was valuable and adequate cannot be questioned, nor that it was made for the benefit of herself and her estate. It was reasonable and certain in its terms, and

would not, if executed, interfere with the rights of creditors, and she might well have made the reconveyance in pursuance of it. If it was void at law, its validity in equity cannot now be doubted: Donovan's Appeal, 41 Conn. 551; Hitchcock v. Kiely, 41 Conn. 611.

It is said the property was not her sole and separate estate, and therefore her promise to reconvey was invalid. This objection has been practically disposed of in what is said respecting the validity of the promise. As the promise by which she obtained the conveyance was for the benefit of herself and her estate, it is unimportant whether the property to which it related was her sole and separate estate. The contract of a married woman for the benefit of herself or her estate is binding in equity, and the estate affected by it need not be held by her to her sole and separate use: See authorities last above cited.

The statute of frauds is also interposed as a defense. If this was a contract relating to the sale of land, and therefore originally within the statute, it was part of an agreement which had been fully performed by the other contracting party to it, and therefore taken from its operation. It is not objectionable for the reason that the promise was not to be performed within a year. No time for performance was stipulated, and it might have been made at any time. That stat ute has no application to this case: Hayden v. Denslow, 27 Conn. 341; 1 Rev. Swift's Dig. 255, and cases cited.

It is claimed that the mistake was one of law, and not of fact, and that therefore a court of equity can give no relief. This has been considered the general rule on the subject; but in Stedwell v. Anderson, 21 Conn. 144, the court say that it is not of universal or unqualified application. And in Patterson v. Bloomer, 35 Conn. 64, 95 Am. Dec. 218, a case where the parties were mistaken as to the legal effect of a chattel mortgage under which possession was not retained by the vendee, and where a specific performance of the contract was asked, Butler, J., giving the opinion of the court, says: "The parties were mistaken. Such a mortgage would be worthless, unless possession was retained by the vendee. It is too clear for doubt that the respondent never would have entered into that agreement but for the mistaken supposition that in the execution of it he was to have the protection of a valid mortgage. It is equally clear that such a mistake is a most material one, and that it was the right and duty of the re