CRUTCHFIELD'S HEIRS AND ADM'R vs. HUDSON, 23 Ala. 393

PHELAN, J. The bona fides of the deed in trust from Haynes to Houston, as trustee, made to secure Crutchfield and others, and under which he and his representatives claim in this action of ejectment, was directly put in issue in the trial of the right of property, which previously took place between Crutch-field, as claimant, and dioico, Harbin & Co., as plaintiffs in execution, who levied on certain slaves embraced in the same deed in trust, as the property of Haynes, their debtor.

The deed was 'prior in point of date to their judgment against Haynes, but they levied on the slaves, notwithstanding, alleging that the deed was fraudulent, as having been made “ with intent to hinder, delay and defraud creditors.” Crutchfield and Choice, Harbin & Co. came to trial on this issue, and it was found in favor of the latter, and the slaves were condemned to the satisfaction of their judgment. As between these parties, then, the question as to the bona fides of this deed in trust is res adjudícala, and the decision has been that it is void for fraud.

Afterwards Hudson, who purchased at the same sheriff’s sale under the Choice, Harbin & Co. judgment a house and lot in Jacksonville, which was embraced in this same deed in trust, and which Crutchfield had bought at the trustee’s sale previously, brought this action of ejectment, to recover the premises of Crutchfield.

The main question now presented for our decision is this : Is Crutchfield, in this action with Hudson about the land, concluded as to the bona fides of the deed in trust under which he claims, by the verdict and judgment rendered in the suit with Choice-Harbin & Co. about the slaves 1 This must wholly depend upon the answer to another question : Was Hudson a party to that suit, or a privy to those who were parties 1 for no principie can be better settled than that no man shall be concluded by a trial and judgment to which he was not either a party or a privy ; in which he had not the opportunity, either in person or by proxy, to prosecute or defend his rights.—McClelland v.

Ridgeway, 12 Ala. 482. It is plain he was not a party.

Was he a privy to those who were opposing parties to Crutchfield, namely, Choice, Harbin & Col To be a privy to another, a man must claim by or under that other, by blood, as heir, by representation, as executor, or by contract, as vendee, assignee, and the like; and a privy.must come after him to whom he is privy, and never precedes. — 2 Thomas’ Coke 506 In respect then to the title to this house and lot, do we find that Hudson comes after Choice, Harbin & Co., and claiming under them, cither by blood, representation or contract 1 It is argued that he docs ; that he purchased the premises at a sheriff’s salo under their judgment.

But this is not a purchase from them. Hudson is not the vendee of the judgment creditor, but of the judgment debtor. The sheriff, by his deed, conveys to the purchaser all the right and title of the defendant to the judgment — of Haynes, and not of Choice, Harbin &, Co. If sued for tho land, in privity with whom would he defend 1 With Haynes, of course. Haynes’ title would be his title by his purchase at the sheriff’s sale.

But does he not succeed to all the rights of the judgment creditor existing at the rendition of the judgment % and if the judgment of Choice, Harbin & Co. then rightfully hound the land notwithstanding the deed in trust, would not the purchaser, solely by virtue of that, hold it in spite of the deed in trust 1— That is undoubtedly so, but it amounts to nothing towards establishing the proposition, that the purchaser would hold the land as privy of Choice, Harbin & Co., the judgment creditors.

The right of the judgment creditors to have the land sold for the satisfastion of their judgment, exists in full force, because, as it is alleged, the deed in trust, though prior in point of date, is void for fraud, as against thorn. But what is it that is sold I what is it that tho purchaser gets'? The land of Haynes, with tho title of Haynes, simply, and he is of course the privy of Haynes, as to that, and not of Choice, Harbin & Co., to whom the money goes.

If Choice, Harbin & Co, had purchased the slaves at a sale under their own execution, and Crutchfield had brought detinue, instead of making it a claim suit, on the occasion of tho levy, and the former had defended on the ground that tho deed in trust was fraudulent, the identical question as to tho bona fules of the deed would have been adjudicated iu that suit, that was in tho claim suit.

But how would Choice, Harbin & Co. have defended in such suit 1 under whose title would they have rested 1 in other words, whose privies were they, in respect to the title to these slaves 1 Undoubtedly under the title of Haynes, and as the privies of Haynes.

If the case had been so, that is, if Choleo, Harbin & Co. had purchased under their own execution, then they Avould have stood in the very predicament in respect to Crutchfield in the detinue suit, that Hudson occupies towards Crutchfield in this ejectment: —both purchasers under tho Choice, Harbin & Co. judgment, and both assailing the deed in trust on the ground of fraud.'— But it has been clearly shown, that, in that suit, Choice, Harbin & Co. were the privies of Haynes, and-how then can it be insisted that in this suit Hudson is the privy of Choice, Harbin & Co 1 The proposition exposes its own fallacy.

If Choice, Harbin & Co. were the privies of Haynes in defending the title to the slaves they purchased, then must Hudson be the privy of Haynes also, in deducing title to the land which he purchased. In respect to each and both the title is good, if the deed in trust was void for fraud; but they do not occupy such a relation to each other that a judicial decision of that question in favor of one, can be invoked by the other ; because, as shown, they are not privies. Try it by what the law considers a good test.

A judicial decision binds both the parties and their privies, sit finis litium; both are forever concluded by it. Therefore, where A claims that B is estopped, concluded, by a judicial decision, the first question that arises is, had the decision been adverse to B, would he have been estopped, concluded, by it 1 for an estoppel, to be really and truly so, must be mutual, must bind both.

If B would have been concluded, then A is so; if not, then A is not, and the question as to A and B is not res adjudicata. “ It is a general rule, that a verdict shall not be used as evidence against a man, where the opposite verdict would not have been evidence for him; in other words, the benefit to be derived from the verdict must be mutual.” — 1 Starkie’s Ev. 196. “ Where the parties are not the same, one who would not have been prejudiced by the verdict, cannot afterwards make use of it, for, as between him and a party to such verdict, the matter is res nova, altho’ his title turn upon the same point.”— lb. 197.

We do not think it can be insisted, that a verdict in favor of Crutchfield in the claim suit about the slaves with Choice, Harbin & Co., would have bound Hudson. He was no party■, had no opportunity te be heard ; and how then could his rights be affected 1 He was not bound; then neither is Crutchfield bound, as respects him. That Hudson was not examined as a witness in the claim suit about the slaves, makes no difference. This is not the kind of case in which that circumstance is allowed to have any weight.

Where a man gives evidence for the State in a criminal prosecution, and may thereby help to make the verdict turn a particular way, he will not be allowed afterwards to use that verdict, although otherwise he might, in a civil action.—Maybee v. Avery, 18 Johns. 352. This disposes of the question relating to the judgment in the Choice, Harbin & Co. suit, and its nature and effect.

The position assumed by plaintiffs in error, that Hudson could not assail the deed in .trust for fraud, because he was one of the creditors secured by it, and had received a pro rata share of the proceeds of the sale of the property conveyed by it, we do not consider tenable. It seems he was secured to some small amount, and received his pro rata share. That circumstance may have been proper to go to the jury for what it was worth, on the question of the bona fides of that deed, but the act of receiving his pro rata share worked no estoppel upon Hudson.

The only sort of act that could estop him as to the bona fides of that deed, must have been one which induced the party with whom he was contending to place reliance on the deed as a good security, when it was not. by confiding in his acts or declarations. Nothing of this sort can be pretended, as between Hudson and Crutchfield, in relation to this deed. As to estoppels in pais, see Pickard v. Lears, 33 Con. Eng. C. L. R. 115. W e come then to the conclusion, that the court below erred in admitting the record of the verdict and judgment in the case of Crutchfield v.

Choice, Harbin & Co., and proof that the question of fraud vel non as to the deed of trust was submitted and decided in that action; and also in the instruction that was given as to the effect of that judgment. The testimony should have been excluded for irrelevancy, and that, of course, would have loft no room for instructions as to its effect. The question raised in this case, as to the proper course to be taken in the revival of ejectments suits, where the defendant dies pending the action, was fully considered and settled at the last term of this court, in the case of Swan v. Driver’s Heirs. See p. 192.

It was there decided to be proper, under our system, to revive both against the heirs and personal representative, as was done in this case, so that the plaintiff, if he recovers, may take his judgment against the heirs for the land, and against the executor or administrator for the damages assessed as mesne profits and the costs. For the errors aforesaid the judgment below is reversed, and the cause remanded.