Fulton v. Hanlow

         I. That the bill put in issue the title of the land is apparent. That thecity and county was the proper representative of this title, and the proper party to sue, or be sued, in respect to it, is unquestionable; otherwise, no controversy could ever be terminated involving title to this property, and no cloud or embarrassment removed from property thus situated.

         The bill is filed upon the express ground that this title is in the city and county, and that it is a trust estate, not subject to sale on execution, and an injunction is sought to restrain the deed of the Sheriff. The facts are all set out in the bill, answer and decree. Upon these facts the judgment of the Court is invoked in respect to the title, and whether it be leviable; and the judgment is, that the property was that of the city at the date of the sale, and subject to sale. And further, the bill asserts that the purchaser at the sale acquired no title to the land, and had no right to a deed; and upon this proposition issue is joined by the answer. The decree finds that the purchaser did acquire title to the land, and that he has a right to the deed. There unquestionably was an issue joined upon facts and law, and these directly affecting title to property; and these facts have been passedupon by a Court of general jurisdiction, having full cognizance of the matter and jurisdiction of the parties.

         The maxims, that no one ought to be vexed twice for the same cause, and that it is the interest of the republic that there be an end to litigation, are common to the jurisprudence of all countries. The rule has been so well given in the Duchess of Kingston's case that it is the general text of authors and jurists. The rule has been quoted with approbation by this Court in Collins v. Butler (13 Cal.) The following cases in this Court define the rule and apply it to particular facts. (Laird v. Kidd , 15 Cal. and McDonald v. Bear River Co., Id.)

         II. The judgment recovered will be evidence whenever the cause of action is the same, although the form of the second action be different from that of the first; and therefore a recovery of damages in trover will vest the property in the chattels sued for in defendant. It is said (Broom's Legal Maxims, 229) that if it be doubtful whether the second action is brought for the same cause, it is a proper test to consider whether the same evidence would sustain both actions, and what was the particular point or matterdetermined in the former action.

         Probably the observations of Sir Knight Bruce (1 Younge & Col. 597) go further for appellant than those of any other Judge: " It is, I think, to be collected that the rule against reagitating matter adjudicated is subject, generally, to this restriction--that however essential the establishment of particular facts may be to the soundness of a judicial decision; however it may proceed on them as established, and however binding and conclusive the decision may, as to its immediate and direct object, be, those facts are not all necessarily established conclusively between the parties, and that either may again litigate them for any other purpose as to which they come in question, provided the immediate subject of the decision be not attempted to be withdrawn from its operation, so as to defeat its direct object. This limitation to the rule appears to me, generally speaking, to be consistent with reason and convenience, and not opposed to authority."

         We have thus stated the rule and its qualifications. It is not necessary to examine the rule further, for the appellant must seek to bring himself within the limitations. He must show that the decree, in this case, did not involve the title, but that the bill was for a purpose different from and involved other issues than the assertion of the title; that the title, or the quality--as whether leviable or not--was collateral and incidental to the main purpose of the suit, or that this fact or title, or its quality--as whether leviable or not--was a mere fact or argument in the case, upon which the decree went, and not the main matter put in issue; that the fact found by the decree, that the title was in the city and subject to sale, was merely an argument conducing to the conclusion that the deed should be enjoined, and not the substantive object and purpose of the bill, and the point actually determined in the action.

         We will suppose the appellant's argument to be thus stated: The city filed its bill to enjoin the execution of a deed by the Sheriff; the question, and only question, in issue was, whether the Sheriff should be enjoined from making the deed. The plaintiff in the bill insisted that the deed should be enjoined, because the city had no leviable estate in the lands sold; therefore, the decree negativing this ground and refusing the injunction was only a decreeupon the point that the city had no right to restrain the Sheriff from making the deed. This decree, then, is only conclusive to show that the city had not the right to an injunction of this sort, but not conclusive as to the leviable character of the property, for this affirmation was only argumentative or collateral to the conclusion referred to.

         In answer to this view we have several suggestions to make:

         1st. That if this be the rule, and applicable here, it would show that no question of title could ever be tried and determined by judgment; for in trover, trespass, and in other actions, the title is not the main thing involved, but only the right to damages; and in equity cases, when particular relief is asked, the question decided would be confined to the title to that particular relief, or to general relief, and not the elements or causes on account of which that relief is sought. If, for example, A sues B for fraud in obtaining a deed, and prays the cancellation of the deed, the question decided in favor of B against the fraud would not be determinative of the fraud, but only of the right to have the deed canceled in the way sought.

         2d. The city had the rightto file the bill upon the grounds assumed, and to put in issue the facts pertaining to those grounds. 1st. She had this right because she was a trustee as assumed, and the trust estate was about to be deeded away. As such trustee, she had a right to ask the protection and advice of a Court of Equity; for the estate might be sacrificed if the property passed from her hands. 2d. She had the right, because--having the legal title, and no one being, so far as appears, in adverse possession--that title drew to her the possession, and therefore she might try the question of the right of the Sheriff or purchaser to cloud or embarrass the title. 3d. She had the right, because the direct effect of the deed, though the property were not leviable, was to cloud the title; for it will not do to say that the deed would be void on its face because the property was not leviable, for non constat, that this was trust property, or that she did not hold by some other title than the pueblo claim. Prima facie, it would seem that the property of the city is leviable and vendible for her debts, and it would require proof aliunde the deed to show that this particular property was not, becauseit was pueblo property, and therefore held in trust. The Court cannot judicially know that this property is upland, or whence the title is derived, or any other facts characterizing it. The whole question would be left open to parol contestation; and after possession or claim by the city were once shown, the city, or those claiming through her, must affirmatively show that the property was clothed with a trust which exempted it from the usual incidents of property; among them, that of its vendible quality.

         This case is brought strictly within the authority of Pixley v. Huggins (15 Cal. 133). Here the deed from the Sheriff is as if it were the deed from the city. The holder of the Sheriff's deed and the subsequent vendee from the city, if there were one, would claim through the same source of title; and it is not material, as has been seen, that the claim sought to be enjoined is inoperative. Indeed, here the city and the purchaser claimed the same identical title, and the deed of the Sheriff prima facie would convey this title to the purchaser. That the deed was really inoperative to do this, is no objection; for if it were, there would be no foundation for the relief, but the deed would be operative to create embarrassment and to cloud the title.

         The case of Shattuck v. Casson, (2 Cal. 588) subsequently affirmed in Guy v. Hermance, (5 Id. 73) and Hickman v. O'Neal, (10 Id. 293) embodies the same principle upon analogous facts. The cases of U. S. Bank v. Shultz, (2 Ham. 471) and Norton v. Beaver, (5 Id. 179) go further than this Court has gone in Pixley v. Huggins. But this case is brought directly within the rule laid down in that case by the test prescribed--" Would the owner of the property, in an action of ejectment brought by the adverse party, founded on the deed, be required to offer evidence to defeat a recovery?" If the purchaser shows a deed from the general owner of the property as against him, the deed is prima facie sufficient to carry the title, and it rests with the owner to show that this consequence does not attach--as that the deed was fraudulent, or the property exempt, or not vendible, or held in trust, etc. Nothing appears upon the face of the Sheriff's deed to show that the city had no other title than the old pueblo title to this property, or that this property was pueblo property, so derivedand held as to be exempt; and even if the Court knew the location of the land, and could know that it was pueblo land, the facts which constitute the title and show its source are in parol, or exist aliunde this record. But it nowhere appears by the levy and deed that this particular tract of land was pueblo land, and the Court cannot judicially know that it was. Upon this view then, it seems clear to us that the bill might have been well filed by the city to set aside this deed, if made; or what is the same thing, to set aside the sale; or to enjoin the execution of the deed, and to declare the title of the city unaffected by the sale.

         3d. But if this were not so, the city chose to file this bill quia timet for the purpose of testing the title, putting the very facts in issue which showed its title. It asked the judgment of the Court upon that matter. The defendant took no exception to the manner of presenting the question. The mere manner in which a party chooses to urge his rights, or to assert his claims, especially under our system, is immaterial, if his antagonist consents. No one but the parties to the cause can complain of irregularities of form or mode. If theyagree, no one else can object. It might have been thought best, for the interest of all concerned, to try this question in this way. So trying it, it is just as well as if the issue had been met in a regular proceeding by the city, in the actual possession of the land, asserting its own and challenging the adverse title. In other words--she thought it for her interest to settle this question of leviable title before any deed by the Sheriff was executed. Now, no restriction exists upon a party to assert a right like this at any time he chooses. One time is as good as another. Title under a sale may be tried before a deed is executed by the Sheriff, as well as afterwards. The effect of the trial is the same in both cases. It is the fact of the trial, not the time of it, or the time when, or the way the party interposes, which fixes the title to that which is in litigation. In this case, the parties may have seen that this was the best mode and the best time to try the title. It might save delays, inconvenience and annoyance thus to try it; and if the parties consent, or do not object thus to try it, the trial is conclusive of what is adjudicated.

         4th. We have assumed, for allpurposes of the argument, that this was a bill--or that the case was dependent upon the same principles as that of a bill--to enjoin the sale of this property under execution. But it is not. The sale had already been made. The right of the purchaser, whatever it was, had enured. The defendant in execution not offering to redeem, was in the same condition, for all practical purposes, as if the legal title derived from the sale had already vested. It was not an attempt, therefore, to prevent a sale on the part of the city, but an attempt by it to divest a right which had arisen from the sale, and which only awaited the lapse of a few days in order to give a perfect title, if the fact was that such a sale could give title to the purchaser under it. Now the defendant might have moved to set aside the sale if any just cause existed for the motion; or it might have filed a bill in equity, if equitable circumstances existed, for the same purpose. It chose to file a bill for this purpose. The sale having passed a title--or what was the same thing, a right to a title--upon the plaintiff, the city and county, was cast the burden of divesting this right; and to divest it, this proceedingwas taken. The attack, therefore, was made in this form upon the purchaser's title. That attack was based upon the alleged invalidity of the sale, and the sale was valid or not, according to the fact, as it might turn out, whether the plaintiff in execution had a right to levy upon the property and sell it. The premises were, that the property was not subject to levy; the conclusions, that therefore there was no legal sale. Upon these propositions issue was taken, and that issue found for the purchaser, and the decision is conclusive.

         III. A verdict, or judgment, on any fact, or title, distinctly put in issue, is conclusive in another action, between the same parties and their privies, in respect to the same fact or title. It is not sufficient that the particular fact or title is put in issue. It must be tried by the jury and constitute the basis and foundation of the verdict. It must be relevant and material, and unless specially found, must have been necessarily passed upon by the jury or Court. (Burt v. Sternberg, 4 Cow. 559; Gardner v. Buckbee , 3 Id. 120; Gilbert v. Thompson, 9 Cush. 348; Porter v. Baker , 19 N.H. 166; McDonald v. Bear River Co. , 15 Cal. 148; Outram v. Morewood, 3 East, 345; 6 Mass. 227; 8 Id. 536; 11 Id. 445; 12 Id. 268; Wood v. Jackson, 8 Wend. 20; Manny v. Harris , 2 Id. 29; Brockway v. Kinney , 2 Id. 210; Eastman v. Cooper, 15 Pick. 285; Baker v. Rand, 13 Barb. 152; Burkhead v. Brun, 5 Sand. 154; Chapman v. Smith, 16 Peters, 144; 3 Wil. 304; 4 Rawle, 188; 2 Whart. 119; Jackson v. Hoffman, 9 Cow. 271; Owen v. Davison, 1 Watts, 149; Montford v. Hunt, 3 W. C. C. R. 28; Kingsland v. Spaulding, 3 Barb. Ch. 141; Kelly v. Pike, 5 Cush. 484; Marsh v. Pier, 4 Rawle, 282; Lloyd v. Barr, 1 Jones, 41; 13 Barb. 152; 18 Ala. 281; Green v. Clark , 5 Denio, 497; Agnew v. McElroy, 10 Smedes & M. 552; Burt v. Steinbaugh, 4 Cow. 599; Barber v. Elliott, 4 Barb. 457; George v. Gillespie, 1 Iowa 421; Doty v. Brown, 4 Cow. 71; Chase v. Walker, 26 Maine, 553. See also, 7 Geo. 434; 19 Vt. 144; 18 Conn. 91; King v. Chase, (15 N.H. R. 9) deserves consideration from the weight justly attached to the opinions of so learned and able a jurist as Chief Justice Parker.)

         This case is not in harmony with the Massachusetts cases. (See 12 Metcalf, 139.) In the case in 15 N. H., the question was, whether the defendant converted some oats, and this question was dependent upon the validity of a certain mortgage; if the mortgage was valid, the plaintiff was entitled to recover--otherwise, not. The jury found against the plaintiff. It was claimed that this finding was conclusive of the fact of the invalidity of the mortgage. The Court quote the rule laid down by Lord Ch. J. De Grey, in the Duchess of Kingston's case, in which the qualification appears, that a judgment is no evidence of any matter which came collaterally in question, or of matter incidentally cognizable, or of matter to be inferred by argument from the judgment. The Court asks what is meant by a judgment directly upon the point, and cites 1 Starkie, 190; 1 Wm. Black. R. 831; Hitchen v. Campbell, 1 Story's C. C. R. 474; Mullett v. Faxcroft, 4 Sumner's R. 165; Wadleigh v. Veazie. The learned Judge argues that the meaning cannot be that any fact which may be set up by one side, and controverted by the other, is the matter in issue; for that would make every fact in proof definitive. He says: " It is that matter upon which the plaintiff proceeds by his action, and which the defendant controverts by his pleading, which is in issue." Deeds which are merely offered in evidence are not in issue, even if their authenticity is denied. " It is important to apply the rule to what was in issue in the action, and not to what was merely incidentally in controversy in the evidence."

         This, perhaps, is one of the strongest cases in limitation and restriction of the general rule already given, and is opposed to the New York cases and many others. (See Jackson v. Wood, 3 Wend. 27-8; Id. 9.) And we have cited it to show that we are clearly within the rule as there limited.

         JUDGES: Field, C. J. delivered the opinion of the Court. Norton, J. concurring.

         OPINION

          FIELD, Judge

         This is an action of ejectment for the possession of certain real estate situated within the city of San Francisco. The plaintiff claims title by virtue of a conveyance from the Sheriff of the county of San Francisco, executed to Frank M. Pixley, upon a sale under a judgment and execution against the city, and of certain mesne conveyances from Pixley to himself. The judgment against the city was recovered by the San Francisco Gas Company, and was docketed on the fourteenth of May, 1856; the execution was issued on the tenth of February, 1858, and the sale was made on the twenty-third of the subsequent month. At such sale, Pixley became the purchaser; and no redemption having been made, the Sheriff executed to him a conveyance on the thirteenth of December following.

         The right of the plaintiff to recover depends upon the efficacy of this sale and conveyance. No question is made as to the validity of the judgment of the San Francisco Gas Company, or the regularity of the proceedings of the Sheriff, or the sufficiency of the mesne conveyances to the plaintiff to pass whatever title Pixley acquired. The question then is: Did the city of San Francisco possess, at the time that judgment was docketed or the execution was levied, any title or interest in the premises in controversy, which was the subject of levy and sale under execution? If she possessed no such title or interest, of course nothing passed by the sale and conveyance of the Sheriff. And that she possessed no such title or interest follows from the admission made by the parties on the trial of the present action, and the decision of this Court in the case of Hart v. Burnett. (15 Cal. 530.) The admission made was, that the premises described in the complaint constitute a portion of the pueblo lands of San Francisco, formerly known as the Yerba Buena, confirmed to the city by the decree of the United States Land Commission. Those lands, and the tenure by which they are held by the city of San Francisco as successor of the old Pueblo of Yerba Buena, were the subjects of extended consideration by this Court in Hart v. Burnett. That case, like the present, was an action of ejectment, in which the plaintiff relied for recovery upon a sale and conveyance by the Sheriff under an execution issued upon a judgment against the city. The premises claimed in that case also constituted a portion of the pueblo lands of San Francisco, and the plaintiff contended that the city had succeeded to the rights of the pueblo with reference to them, and that her title was absolute; and, consequently, the subject of levy and sale under execution. But the Court, after elaborate examination, though agreeing with the plaintiff that the city had succeeded to the rights of the pueblo in the lands, was of opinion, and so adjudged, that the lands were held in trust for the public use of the city, and were not, either under the old Government or the new, the subject of seizure and sale under execution; and further, that the title of the city was unaffected by sales of the Sheriff under executions against her; and that a defendant in ejectment relying solely upon his possession could set up the invalidity of such sales and of the title derived therefrom. The decision thus rendered covers the present case, and necessitates a judgment for the defendant, unless its effect is obviated by the decree of the District Court rendered in proceedings taken by the City and County of San Francisco to enjoin the execution of a conveyance by the Sheriff upon the sale to Pixley. As already stated, the sale to Pixley was made on the twenty-third of March, 1858. On the twenty-third of September following, the day on which the time for redemption under the statute would have expired, the City and County of San Francisco, which had succeeded to the rights and interests of the City in the premises, filed a complaint in the District Court of the Twelfth District against the Gas Company, the Sheriff of the county, and Pixley, praying for an injunction to restrain the Sheriff from executing, and Pixley from receiving, a conveyance of the premises sold. The complaint alleged as grounds for the equitable interposition of the Court, that the lands sold were exempt from execution by the Act of May 1st, 1854; that they constituted one of the sources of the revenue of the city; that provision for the payment of the judgment against the city had been made by the Consolidation Act of April 19th, 1856; that the lands were not held by the city in fee simple, but were derived from the Mexican Government in trust for those who might require the same for actual settlement; that the city was indebted to an amount equal to that allowed by the charter when the debt was contracted upon which the judgment of the Gas Company was obtained; and that a deed to Pixley would cloud the title of the city, and work irreparable injury. To this complaint the Gas Company answered, disclaiming all interest in the subject matter of the suit. This disclaimer was undoubtedly made from the fact stated in the complaint, that its judgment had been previously assigned to Pixley. The Sheriff answered, alleging that as he acted in his official capacity in executing process, he was not a necessary party, and had no interest in the litigation. The defendant Pixley answered, denying, in substance, the several matters alleged as grounds for the equitable interposition of the Court by injunction. No proofs were offered in the case by either party, and the case was submitted to the Court for its decision upon the complaint and answer. On the tenth of September, 1859, the Court rendered its decision, to the effect that the sale under the judgment and execution of the Gas Company was valid and effectual to pass the title of the premises to the purchaser, and that there was no equity in the complaint; and adjudging that the complaint be dismissed as to the Sheriff and Gas Company, and that Pixley was entitled to a conveyance.

         Upon this decree the plaintiff relies to take the present case out of the operation of the decision in Hart v. Burnett. He asserts, with reference to it, two propositions: first, that the decree is an adjudication that the lands sold were not held by the city under any trusts, as determined in Hart v. Burnett, but that the title of the city to those lands was subject to levy and sale under execution, and that by the sale and conveyance in question, the title passed to Pixley and became vested absolutely in him; and second, that the decree is admissible in connection with the conveyance as a muniment of title constituting a link in the deraignment to the plaintiff.

         The construction which we give to the decree will render it unnecessary to consider the second proposition. As we read the decree, it is not an adjudication upon the character of the title of the city which the purchaser acquired from the sale and conveyance of the Sheriff. There was, in fact, nothing before the Court from which it could pass upon the character of the title. The Sheriff had advertised and sold whatever right, title and interest the city possessed in the premises which was the subject of levy and sale. He could sell no other title or greater interest. The City and County filed a complaint to restrain the execution of a conveyance to the purchaser; and the Court adjudged that the sale was effectual to pass the title--that is, such title as the Sheriff had sold, whatever it might be. It is that title, and no other, to which the decree refers. If there were any doubts as to this construction, it is removed by that part of the decree which adjudged that there was no equity in the complaint. In thus adjudging, the Court determined that the maters set forth as grounds for restraining the execution of the conveyance were insufficient to justify any interference with the action of the Sheriff, without passing upon the truth or falsity of those matters. The Court may very well have considered that if the premises were held in trust by the city, as alleged in the complaint, or if for any other reason there alleged were exempt from seizure and execution, the conveyance of the Sheriff could do no harm, as nothing would pass by it; and hence, that there was no occasion for the injunction. Indeed, we do not perceive that the Court could with propriety have passed upon any question respecting the character of the title acquired, after it had arrived at the conclusion that there was no equity in the complaint, even if there had been, as there was not, any proofs before it on the subject. Nor does it matter whether its conclusion in this particular was correct or otherwise. When once reached, it only remained for the Court to deny the injunction and dismiss the suit. The consideration of the character of the title was, then, foreign to the case, and entirely unnecessary for its disposition; and, as a consequence, any declaration in the decree as to that title was without any binding force as an adjudication either upon parties, privies, or anybody else. (Hotchkiss v. Michaels, 3 Day, 138; Coit v. Tracy , 8 Conn. 268.) The legal operation, therefore, of the decree as an adjudication between the parties, is precisely the same which would have followed had it simply denied the injunction and dismissed the suit for want of equity in the complaint. It establishes the fact that the matters alleged were not sufficient for the exercise of the jurisdiction of a Court of Equity; it determines nothing as to the truth or falsity of those matters, or as to the rights of the parties upon them, when they are presented in a Court of Law. (Lessee of Wright v. Deklyne, 1 Pet. C. C. 198.)

         As already stated, it does not matter whether the conclusion which the Court reached as to the want of equity in the complaint was correct or otherwise. The conclusion stood as the determination of the Court upon the effect, as entitling the complainant to the injunction, of the matters he alleged, assuming them to be true. But there is no doubt, in our judgment, of the correctness of the conclusion in this particular. The equity asserted, and upon which alone the suit proceeded, was that the premises were not the subject of levy and sale on execution, and that the deed of the Sheriff would cast a cloud upon the title. It was to prevent the casting of a cloud upon the title that the equitable jurisdiction was invoked, and averments respecting the character of the property, or the condition upon which the same was held by the city, were immaterial except as they showed that this result would follow from the execution of the deed. As was said in the case of Pixley v. Huggins (15 Cal. 132): " The jurisdiction of the Court to enjoin a sale of real estate is coextensive with its jurisdiction to set aside and order to be canceled a deed of such property. It is not necessary for its assertion in the latter case that the deed should be operative, if suffered to remain uncanceled, to pass the title, or that the defense to the deed should rest in extrinsic evidence, liable to loss, or be available only in equity. It is sufficient to call into exercise the jurisdiction of the Court, that the deed casts a cloud over the title of the plaintiff. As in such case the Court will remove the cloud, by directing the cancellation of the deed, so it will interfere to prevent a sale, from which a conveyance creating such cloud must result." And the test laid down by the Court in that case, by which the question whether a deed would cast a cloud upon the title of the plaintiff may be determined, is this: " Would the owner of the property, in an action of ejectment brought by the adverse party, founded upon the deed, be required to offer evidence to defeat a recovery? If such proof would be necessary, the cloud would exist; if the proof would be unnecessary, no shade would be cast by the presence of the deed. If the action would fall of its own weight, without proof in rebuttal, no occasion could arise for the equitable interposition of the Court; as in the case of a deed void upon its face, or which was the result of proceedings void upon their face, requiring no extrinsic evidence to disclose their illegality. All actions resting upon instruments of that character must necessarily fail."

         If this test be applied to the Sheriff's deed to Pixley, it will be seen at once that no cloud could possibly be cast by it upon the title of the City and County of San Francisco. The judgment of the Gas Company, and the execution issued thereon, constituted the authority to the Sheriff to sell whatever interest in the premises the judgment debtor possessed at the time the judgment was docketed, or the execution levied, which was subject to levy and sale on execution. The Sheriff could sell no other or greater interest, and his deed, of course, could pass none. In deraigning title through this deed, in ejectment founded upon it, the plaintiff would first have to trace the property to the defendant--the city of San Francisco--and then produce his judgment, execution and Sheriff's deed. But the very evidence by which the property would be traced to this city, consisting chiefly of the public laws of Spain and Mexico, would show that it passed under her control subject to specific trusts for certain public purposes, which necessarily exempted it from forced seizure and sale. As a consequence, the action would necessarily fall of its own weight; for the judgment and execution conferred no authority to sell property thus held to satisfy a debt of the city. When, therefore, the City and County of San Francisco, in the suit for an injunction, alleged that the lands were derived from the former Mexican Government, in trust for certain specific purposes, it showed that it had no claim whatever to the equitable relief prayed; that no cloud could be cast by the deed, if executed, upon the title, inasmuch as any action brought upon such deed must necessarily fail, from the impossibility of the plaintiff's tracing any leviable interest to the city.

         The judgment of the Court below must be reversed, and that Court directed to enter judgment for the defendant upon the facts found by the referee.

         Ordered accordingly.

         CONCUR

          NORTON

         Norton, J. delivered the following concurring opinion:

         The plaintiff, although showing no title other than one derived through a sale under a judgment and execution against the city of San Francisco, and admitting that the demanded premises were a portion of the pueblo lands of Yerba Buena, does not question the authority or effect of the decision in the case of Hart v. Burnett, (15 Cal. 530) but claims that his title derived in this way has become a good and valid title by virtue of a judgment pronounced in a case between the City and County of San Francisco, plaintiffs, and the San Francisco Gas Company, Frank M. Pixley and Charles Doane, Sheriff, defendants. By this judgment it is claimed that the question of the plaintiff's title has become res judicata, and that the judgment is binding upon and conclusive against the parties to that judgment and all other persons.

         In order that a judgment should be a defense in another action on the ground of res judicata, the same point must have been directly in issue and determined by the judgment. There is frequently much difficulty in deciding what is to be considered the point which was directly in issue, and which is to be treated as having been so settled by the judgment, as to be held forever res judicata; and from the number of decisions to which this difficulty has given rise, cases may be cited favoring the most extreme views in either direction: on the one hand, holding that any matter that was litigated in the case, or even that might have been litigated, is to be deemed to have been directly in issue; and on the other hand, holding that only the ultimate matter, as to which the judgment gives or denies relief, is to be deemed to have been the point directly in issue. An instance of the latter class is to be found in the case of King v. Chase (15 N.H. 9). In that case the question was as to the title to a quantity of oats. One party claimed title by virtue of a certain mortgage; the other party claimed that the mortgage was a forgery, and insisted that the question was res judicata, because in a former action between the same parties in regard to another quantity of oats held by virtue of the same mortgage, the question of the genuineness of the mortgage was litigated between the parties, and it was decided that the mortgage was a forgery. The claim of res judicata was not allowed, because the question of the validity of the mortgage was not the direct point in issue in the former trial, that point being the title to the oats. The following cases are to the same effect: Noel v. Willis, (1 Lev. 235); Hotchkiss v. Nichols, (3 Day 138); Coit v. Tracy, (8 Conn. 268); Aslin v. Parker, (2 Burrows 666); Gilbert v. Thompson, (63 Mass. 348, 9 Cush. 348). In the case of Bennett v. Holmes, (1 Dev. & Battles, 486) Judge Gaston gives the rule in these words: " A judgment, therefore, in any action is conclusive only as to what it directly decides. As the judgment is the fruit of the action, it must follow the nature of the right claimed and the injury complained of, and can conclude nothing beyond them."          The question now before the Court is the title to the demanded premises. Was that the point directly in issue in the former action? In order to determine this question, we must consider what was the direct or ultimate object of that action; what was the injury complained of, and what was the relief asked or which could be obtained by the judgment of the Court. It was not an action to quiet title. The complaint did not ask for a judgment that the title was in the plaintiff, or not in the defendant; it did not ask a judgment that the title had not passed by the sale, or that a title would not pass by the deed threatened to be executed in pursuance of the sale. The injury complained of was that the threatened deed would be a cloud upon the plaintiff's title; and the only relief sought was an injunction to prevent the doing of the act by which the cloud would be created. It was directly alleged in the complaint, and denied by the answer, that the deed would create a cloud upon the title. And this allegation and denial formed the precise issue that was to be decided, and upon the decision of which the judgment was to turn, and the relief asked was to be granted or refused. In such an action, the only point that could be directly in issue, and be the exact matter settled by the judgment of the Court, was whether the threatened deed would be a cloud upon the title. Various reasons were given, or facts stated in the complaint, to show that the deed ought not to be executed; but whatever may appear to have been the views of the Court upon these facts, they did not either of them constitute the direct point in issue. The only judgment that could be given was merely a granting or denial of an injunction; and the only direct point upon which that judgment could be based was, that the deed would or would not be a cloud upon the plaintiff's title. Although the judgment of a Court of Equity is equally effectual as res judicata as that of a Court of law, the nature of their different jurisdictions must be considered in order to determine what was the exact matter decided. It is suggested, that whether or not the deed in question would constitute a cloud upon the title is a conclusion of law, and that the decision of this point would not determine any fact litigated by the parties. Without inquiring whether this should be considered a conclusion of law, or a resulting fact, it is sufficient to say that it is a point put in issue by the pleadings, and upon which the judgment proceeds and rests. Whether the preceding facts alleged are true or not is immaterial, if, being true, they do not make a case for the exercise of equity jurisdiction. If in order to determine the case as one of equity jurisdiction it was only necessary to decide whether or not the deed would be a cloud upon the title--that is the direct point in issue, and the only one that becomes res judicata by force of the judgment. As an illustration: suppose a complaint is filed to enjoin a Sheriff from executing a deed, and as a ground it is charged that there was no valid judgment to sustain the sale, and hence, as a resulting fact, that no title passed by the sale, and that the deed would be a cloud upon the title. If the answer should deny the allegation that there was no judgment, and should further insist that, if there was a judgment, the deed would constitute no cloud upon the title, and the Court should thereupon deny the injunction and dismiss the complaint, would it be held in a future litigation that it was res judicata that the title had passed? Or, suppose a complaint filed to enjoin a Tax Collector from executing a deed under a tax sale. Various irregularities in the proceedings of the Assessor and Collector might be stated, in order to show that the deed ought not to be executed; in other words, to show that the title had not passed by the sale. But the simple statement of these facts would not give a Court of Equity jurisdiction of the case. It would be further alleged as the direct point of the case, and upon which the judgment of the Court must be based, that the deed to be executed would be a cloud upon the plaintiff's title. If the Court should refuse the injunction, dismiss the bill, and the purchaser at the tax sale should take his deed, and upon it bring an action of ejectment against the plaintiff in the former action, would the judgment be held as having conclusively decided that there were no irregularities in the tax-proceeding, and that the title had passed? I think not. The cases might be decided upon the views of the Court, whether right or wrong, as to whether the deed would or would not create a cloud, and without reference to the truth of the facts alleged to show that the deed ought not to be executed.

         So obvious does it appear to me that a simple judgment denying the relief asked and dismissing the bill could not be considered as deciding the question whether the title had passed that, I presume, if nothing more had been stated, the idea would not have been suggested. But in addition to the judgment, which decided the case, there was inserted in that judgment a direct adjudication that the title had passed, and that the purchaser was entitled to a deed. This was done some six months after the deed had been actually executed, and was plainly done for the express purpose of making the case res judicata upon this point. I think, however, this makes no difference. As we have seen, it is the point as to which relief was sought, and upon which the judgment rests, and not any incidental or secondary matter that may have been controverted by the parties, that becomes res judicata. That these subsidiary judgments should not be treated as being res judicata is the more apparent in this case, as no judgment upon those points was asked in the complaint, and no direct issue was made upon them by the pleadings, although they may be said to be put in issue inferentially.

         My views upon this point make it unnecessary to consider the other points raised in the case, and I concur with the Chief Justice that the judgment should be reversed, and the Court below directed to render a judgment for the defendant.