REED v. Douglas.

[74 IOWA, 244.]

ESTOPPEL. — JUDGMENT QUIETING TITLE is conclusive in favor of plaintiff

that he is the absolute owner of the property, and that a tax title then held by the defendant is invalid.

ESTOPPEL. — JUDGMENT QUIETING PLAINTIFF'S TITLE concludes the defendant from asserting a title by him acquired pendente lite, and which he might have pleaded in the action, but did not.

Ruby and Wilkin, for the appellant.

J. B. Westfall and V. Wainwright, for the respondent.

REED, J. On the 20th of November, 1871, Hannah J. Stanton acquired title to the property in question by conveyance from David Stanton, her husband. On the 27th of April following, she and her husband executed a mortgage on the property to Dennis and Keyes to secure an indebtedness of $408.30. Plaintiff afterwards became the owner of that note and mortgage, and in 1876, he brought suit thereon in the Madison circuit court, and recovered a judgment for the amount of the indebtedness, and for the foreclosure of the mortgage. On the 10th of October, 1872, the treasurer of the county executed to John McLeod a tax deed of the premises, under a sale for delinquent taxes, and on the 12th of the same month, McLeod conveyed the premises to Francis Davis. On the 20th of September, 1876, the Stantons executed to plaintiff a quitclaim deed, and on the 12th of December, 1876, Davis executed to him a like conveyance. Those conveyances were intended to cover the property in question, but the description was defective; and on the 10th of February, 1880, Davis executed a second deed, intended to correct the mistake, but the description in that conveyance of the property was also defective. These conveyances were executed in pursuance of an agreement between Stanton and plaintiff, whereby the latter was to accept the premises in satisfaction of the debt secured by the Dennis and Keyes mortgage. On the 15th of September, 1875, Layton Jay recovered a judgment against David Stanton in the circuit court for $394.33, on which execution issued August 14, 1876, which was levied on the property, and the same was sold at sheriff's sale, on the 27th of September following, to James Tumilty, to whom the sheriff executed a deed November 22, 1877; and on the 24th of February, 1880, Tumilty executed a conveyance to J. R. Thompson, who, on the 8th of March, 1886, gave a warranty

deed to defendant. Davis and Stanton also, on the 26th of January, 1886, executed a quitclaim deed of the premises to Thompson. On the 3d of March, 1877, and the 28th of January, 1879, Thompson also obtained tax deeds of the property, under sales for delinquent taxes. Plaintiff brought an action in the district court against Thompson to cancel those deeds, and quiet in him the title to the property. Judgment was entered in that action on the 27th of February, 1880, quieting plaintiff's title, but establishing a lien on the property for the amount of the taxes paid by Thompson, and providing for a sale on special execution for the satisfaction of the lien. Plaintiff, however, subsequently discharged it by paying the amount found to be due. Defendant alleged that he was an innocent purchaser for value. Also that the agreement between plaintiff and Stanton, under which the conveyance from Davis and Stanton to plaintiff was executed, was, that plaintiff, as part of the consideration, was to pay the Layton Jay judgment against Stanton, and that the deeds were deposited with a third party in escrow until that agreement should be performed; but that plaintiff subsequently obtained possession of them, and asserted title under them, refusing at the same time to perform the agreement. He also alleged that Davis held the title to the property in trust for Stanton, who was the real owner thereof at the time of the execution sale to Tumilty; and, in a cross-petition alleging these facts, he prayed that his title be quieted. Plaintiff, in his reply, pleaded the judgment rendered in the action against Thompson in bar, alleging that defendant is now estopped by that adjudication from either asserting title in himself or denying plaintiff's ownership of the property.

We are of the opinion that the plea of estoppel should be sustained. The relief demanded by plaintiff in the action against Thompson was the setting aside of the tax deeds, and the quieting of his title to the property. His ownership was necessarily drawn in question; for, unless he was the owner, he was entitled to no relief in the action. He alleged in his petition that he was the absolute owner of the property, and that allegation was denied in the answer.

The judgment, then, necessarily determines, not only that the tax deeds were invalid, but that plaintiff was the owner of the property. A judgment operates as an estoppel, not only as to all matters in issue, but as to all points controverted upon which the verdict or finding was rendered: Cromwell v.

County of Sac, 94 U. S. 351; Haight v. City of Keokuk, 4 Iowa, 199; Delany v. Reade, 4 Id. 292; Shirland v. Union Nat. Bank, 65 Id. 96. It will be observed that the conveyance from Tumilty to Thompson was executed pending the action, so that the latter could have pleaded the same claim of title in that action which defendant asserts in this. It makes no difference that the conveyance was after the issue was joined, for under our system of pleading he would have been permitted to set up the claim, by proper amendment, at any time before the judgment was entered. Another consideration quite as conclusive of the question grows out of the fact that plaintiff was required by the judgment to pay the amount of the tax which Thompson had paid upon the land. That provision of the judgment was favorable to Thompson, and he has had the benefit of it; and neither he nor his privies will now be permitted to assert a claim which he owned, and might have asserted in the former action, and which, if valid, would not only have defeated any recovery by plaintiff, but would also have prevented the establishment of the right which Thompson secured by the judgment.

Affirmed.

JUDGMENT, CONCLUSIVE AS TO WHAT Facts: Burlen v. Shannon, 99 Mass. 200; 96 Am. Dec. 733; Lea v. Lea, 99 Mass. 493; 96 Am. Dec. 772, and extended note 775–788; Harmon v. Auditor etc., 123 Ill. 122; 5 Am. St. Rep. 502.

OPERATION OF JUDGMENT AS ESTOPPEL is not affected by the fact that a motion for a new trial is pending in the action in which it is given: Young v. Brehe, 19 Nev. 379; 3 Am. St. Rep. 892.

THE DOCTRINE OF RES JUDICATA has been held in Virginia to apply to all matters which were or might have been raised at the trial, and applies to both the parties to suit and their privies: Findlay v. Trigg's Adm'r, 83 Va. 539; Bradley v. Zehmer, 82 Id. 685.

THE IMPORTANT POINT IN THE PRINCIPAL CASE is the decision that a title acquired by the defendant after issue joined, and which he does not plead by supplemental answer, must nevertheless be regarded as in issue, and therefore bound by the final judgment in the action. This point did not receive the attention it deserved, and the opinion indicates that the decisions elsewhere made upon the subject were not called to the notice of the court. The conclusion announced was, in our judgment, in conflict both with principle and with authority. The rule that a judgment is conclusive upon all questions which might have been litigated in the action is often asserted in general terms, and its assertion in such terms is misleading. The plaintiff by his complaint tenders certain issues. These the defendant must meet, if he does not choose to have them stand as decided against him. If he takes issue on some, and omits to do so as to others, these latter will be equally concluded by the final judgment in the action, because they were matter

which it was his duty then to litigate, if he ever wished to do so. But the whole litigation take effect as by relation as of the date of the filing of the complaint. While the parties in certain instances may give it a different effect or date by the filing of supplemental pleadings, it cannot be said to be their duty so to do. Hence the failure to file such pleadings is not a waiver of the right in some subsequent action of urging the matters which might have been urged by supplemental pleading in the former action. The utmost that a judgment can be properly regarded as determining is, that the facts alleged in the complaint were true when it was filed. If the defendant afterwards acquires a title from some one who is not a party to the action, he may, at his election, put it in issue by a supplemental answer. But if he does not so put it in issue, it cannot be affected by the final judgment: People's Savings Bank v. Hodgdon, 64 Cal. 98; Valentive v. Mahoney, 37 Id. 396.

CRANE V. CHICAGO AND NORTHWESTERN RAILWAY COMPANY.

[74 IOWA, 830.]

NEW TRIAL MAY BE GRANTED WHERE VERDICT IS AGAINST INSTRUCTIONS OF COURT. Instructions, whether right or wrong, constitute the law of the case, and it is the duty of the jury to follow them.

MANDAMUS MAY NOT BE MAINTAINED BY PRIVATE CITIZEN TO COMPEL RAILROAD COMPANY TO RELOCATE ITS ROAD. Unless the public interests have been injuriously affected, a private individual cannot insist by mandamus that a public right or duty be enforced; it is not sufficient that he has suffered private damage. Under the Iowa code, section 3377, the "order of mandamus is granted on the petition of any private party aggrieved."

Callender and Smith, and Barcroft and Bowen, for the appellant.

Hubbard and Dawley, for the appellees.

SEEVERS, C. J. The plaintiff is a resident voter, tax-payer, and property holder of Polk City, in Madison township, Polk County, Iowa, and brings this action for himself and other voters, tax-payers, and property holders in Polk City, and the petition, in substance, states that the defendant, the Des Moines and Minneapolis Railroad Company, was a corporation organized under the laws of Iowa; that the object, as defined by the charter of said corporation, was to construct and operate a railroad from Des Moines to the state line between the states of Iowa and Minnesota; that prior to August, 1870, said line of road was located through Polk County by Polk City; that a tax was voted in said Madison township upon the taxable property therein, to aid in the construction of said

road from Des Moines by Polk City to Ames, in Story County; that said road was constructed and operated by the way of Polk City from Des Moines to Ames, Polk City being a station on its main line between said places; that said company having complied with the conditions upon which the tax was voted, the same, amounting to about seventeen thousand dollars, was collected and paid to said company; that the county of Polk conveyed to said company about fifteen thousand acres of swamp-land belonging to the county, upon the express condition that said railroad should be constructed and operated through and by Polk City; that many citizens of Polk City subscribed and paid for stock in said company upon like conditions; that said road was operated for several years by Polk City as a through-line between said places; that in the year 1879 the defendant, the Chicago and Northwestern Railroad Company, leased and became in possession of all the franchises, privileges, and property of said former company, and of the railroad, and changed the location thereof, and has built and is now operating its main line of road about two miles east of Polk City, to the great damage of the plaintiff and other property owners in Polk City, and that said line is entirely a different line from the one in aid of which taxes were voted; that plaintiff has demanded of the last-named company that it operate the road as it was originally constructed, which the said defendant refuses to do; that plaintiff owns property in Polk City, which has greatly depreciated in value because of such refusal.

The relief asked is, that defendant be compelled to operate the road as it was originally constructed and operated. The answer admits some of the allegations of the petition, and denies others. It is denied that plaintiff or other citizens sustained any damage by the change made. It is alleged that the road constructed by the Des Moines company was a narrow-gauge road, which has been changed to a standard gauge, and that the road as now operated has become part of an extensive system of railroads, and that it has become part of a through-line between Des Moines and St. Paul. It is also alleged that such road is of greater value and of more use and benefit to the plaintiff and other citizens of Polk City than it was as originally constructed; that, under a contract or understanding with thirty-five of the principal tax-payers of Polk City, a change in the location of the road as originally constructed was made, so that the main line thereof is oper