Parkes r. Clift.

JAMES A. PARKES v. W. CLIFT et al.

1. ESTOPPEL. Judgment. The estoppel of a judgment or decree extends to all matters material to the decision of the cause which the parties, exercising reasonable diligence, might have brought forward at the time.

2. RES ADJUDICATA. Judgment. A judgment or decree to be a bar as res adjudicata must be in the merits, but to this end it is not necessary that the litigation should be determined on the merits in the moral or abstract sense of these words; it is sufficient that the status of the action was such that the parties might have had their suit thus disposed of, if they had properly presented and managed their respective

cases.

3. SAME. Demurrer. A decree dismissing a bill upon demurrer, on the ground of lapse of time or laches, is on the merits, and a bar to another suit between the same parties or their privies, about the same subject-matter, and for the same purpose.

4. LLMITATIONS OF ACTIONS. Code 2755 construed. The Code, sec. 27551 which authorizes a plaintiff to commence a new action within one year after the rendition, in a suit commenced by him within the time limited by the statute of limitations, of a judgment or decree against him "upon any ground not concluding his right of action," does not apply when the judgment or decree is on the merits.

5. LIMITATIONS. Statute of. In a suit by heirs to recover lands descended from an ancestor, and for this purpose to set aside a judgment against the ancestor, as void for want of notice or fraud, and a sale of the lands made under the judgment during the life of the ancestor, the time of limitations or laches would begin to run against the ancestor.

FROM HAMILTON.

Appeal from the Chancery Court at Chattanooga. W. M. BRADFORD, Ch.

BARTON & SON and L. D. HEADRICK for complainant.

Parkes v. Clift.

RICHMOND & KEY and M. H. CLIFT for defendants.

COOPER, J., delivered the opinion of the court.

On May 15, 1854, Robert Lusk recovered a judgment in the circuit court of Davidson county, against Thomas Parkes for $1720. The entry shows that the judgment was by default upon an acknowledgment of service of the summons, and that the acknowledgment was proved by R. C. Foster, Esq. On the 1st of July, 1854, a fieri facias issued on this judgment to Davidson county, and was returned "no property found." On September 12, 1854, an alias fi. fa. issued to Hamilton county, and was levied by the sheriff on several thousand acres of land as the property of Parkes. On January 10, 1855, the sheriff, by virtue of the levy, sold the land to the judgment creditor, Robert Lusk, for less than the amount of the judgment, and made him deeds accordingly, which were duly registered. In the month of October, 1855, Thomas Parkes died intestate in Hardin county, leaving three children as his only heirs, W. J. Parkes, then about seventeen years of age, Thomas Parkes, about fifteen years of age, and the complainant, James A. Parkes, then twelve or eighteen months old. The deceased left also a widow. Administration was taken out on his estate shortly after his death.

On April 25, 1876, W. J. Parkes, Thomas Parkes and James A. Parkes, filed their bill in the chancery court of Hamilton county, as the children and heirs of Thomas Parkes, the intestate, against Wm. Clift, of Hamilton county, Matilda Lusk, as executrix of the last will of Robert Lusk, deceased, and E. G. Pearl,

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Parkes . Clift.

individually and as executor of the last will of Dyer Pearl, deceased, setting up title to the lands sold by the sheriff as aforesaid, and seeking to remove as clouds upon their title, the conveyances under which the defendants claim. The complainants say that they were ignorant their father owned these lands until 1876, when Thomas Parkes, while investigating the title of certain lands in Hamilton county, which had descended to them from an uncle, unexpectedly found the sheriff's deed. It was further found that on April 11, 1865, Robert Lusk and the defendant, E. G. Pearl, in his own right and as executor of the last will of Dyer Pearl, his deceased father, each as the owner of an undivided moiety of the lands in controversy, joined in conveying to the defendant Clift an undivided fourth of said lands, and to R. C. McRee, another fourth, and that on March 27, 1873, McRee sold and conveyed to defendant Clift his interest in the lands. The bill set out the facts as to the judgment, execution, levy and sale, and sought to have the same declared void. The defendants demurred to the bill, and the demurrer, although overruled by the chancellor, was, upon appeal, sustained by this court at the September term, 1879, and the bill dismissed.

On March 29, 1880, James A. Parkes filed the present bill against the same parties and for the same purpose. He states the fact of the filing of the previous bill by himself and brothers, and what was done with it as above. He sets out the facts of the case as therein recited, and adds other facts tending to show that the debt on which the judgment was recovered

Parkes v. Clift.

had been paid, and that the judgment was void for want of service of process, and because fraudulently procured to be rendered. He further alleged that the complainant's brothers had gone into bankruptcy, and that their interests in the land had been sold by their respective assignees, the interest of the one in 1876 and of the other in 1878, and that complainant had become the purchaser. By an amended bill it is stated that the papers in the suit of Lusk against Parkes, had been found by some one since the filing of the complainant's original bill, and it now appeared that the acknowledgment of service of the summons purported to be signed by Thomas Parkes himself on February 16, 1854, the day the suit was commenced; that complainant had caused the signature to be submitted to persons acquainted with the handwriting of Thomas Parkes, and, on information derived from them, complainant charged that the signature was not his. In this amended bill, there are some additional averments of facts tending to show that the debt sued on had been paid in 1853. The defendants demurred to the bill as amended, assigning as one cause of demurrer that it showed upon its face a former adjudication, which was a bar to the present action. The chancellor overruled the demurrer and the defendants appealed.

The bill as drafted leaves it uncertain what part of the facts detailed in it were not contained in the former bill of the 25th of April, 1876. There is a general statement that the facts have all come to the knowledge of complainant and his brothers since Jan

Parkes v. Clift.

uary, 1876, and many of them since April 25, 1876. And those facts which seem to have come to the knowledge of the complainant since the dismissal of the former bill, are obviously such as could have been discovered sooner by reasonable diligence, for the same sources of information existed in 1876 as in 1880. The complainant being a purchaser pending the former suit of the interests or shares of his brothers in the land in controversy, the present suit is between the same parties or their privies as the former suit, is about the same subject-matter, the lands in Hamilton county, and for the same purpose, to remove the cloud from the title set up created by the judgment against the father, and the sales thereunder. It was the duty

of the complainant to present his whole case in the former suit. According to the strict English chancery practice, he could not, pending the suit, have been permitted to bring forward, by way of amendment, facts in his knowledge at the filing of the bill. And we have repeatedly held that after the dismissal of a bill in this court upon demurrer, the cause would not be remanded for the purpose of amending the bill by the insertion of such matter: McEwen v. Gillespie, 3 Lea, 204; Fogg v. Union Bank, 4 Baxt., 539; Puckett v. Richardson, 6 Lea, 64. A new bill will not, of course, lie in such a case, for the estoppel of a judgment or decree extends to all matters material to the decision of the cause which the parties, exercising reasonable diligence, might have brought forward at the time: Thomson v. Blanchard, 2 Lea, 528; Peeler v. Norris, 4 Yer., 331; Welch v. Harmon, 8 Yer., 103;