Michael Sevey vs. Mary Chick, 13 Me. 141

The action was continued nisi, and the opinion of the Court subsequently drawn up by Weston C. J. The agreement of the immediate parties, by their counsel, in the suit Thomas Kennedy v. Joseph Munsey, and of Michael Sevey for himself, certified by the clerk, is to be regarded as part of the record in that case. It must have been so intended and so received. It gave a direction to the cause, which could not otherwise have been legally admissible.

The agreement of Sevey is subjoined to that of the immediate parties, recognizing what they proposed and stipulating that his title should be tried in that suit, as if brought against himself, 11 is deducible from this arrangement, that the demandant there was desirous of having the validity of his title determined, and accordingly brought his action against Joseph Munsey, the tenant in possession. As it turned out that he was not tenant of the freehold, but the mere lessee of Sevey, that object was in danger of being defeated.

But as Sevey was equally desirous, that it should be ascertained in that suit, which had the-better title, the arrangement made was adopted, as an expedient for their mutual accommodation. It brought before the court, by the consent of all concerned, the parties in interest. Sevey was not a mere stranger. There was a privity between him and Munsey. The course pursued became virtually a rule of court. It must have received their sanction.

The eiTect of it was, to permit Sevey to take the place of the party defendant, it having been expressly stipulated, that if he could show the bettor title, a verdict and judgment thereupon, should bo rendered against the demandant. In the position, which Sevey was permitted to occupy, he had the same right, either to assail the demandant’s title, or to establish his own, which he would have had, if the action had been brought against himself. He v/as indeed at bis own request, and by the consent of the other parties, and by the permission of the court, received as a party.

If the action had been brought against him, his title, as compared with that of the demandant, would have been tried and determined, and he would have been concluded by the result. He agreed that his title should be tried, as if it had been so brought; and it was tried accordingly. If he is not to abide by tlie determination, the other side was deceived and misled, and the court trifled with. The parties merely beat the air. It was a conflict without end or aim, deciding nothing, and leaving the combatants at liberty to renew the controversy.

The former trial must have turned upon the question, whether the deed from Samuel to Joseph Mamey was operative, as against the creditors of Samuel. Kennedy succeeded at that time, by testimony then in his power to adduce, in defeating that deed. Sevey had opportunity to cross examino his witnesses, and to introduce repelling testimony. Failing then, if he may lay by, until the witnesses against him have disappeared, by death or otherwise, or until the facts have faded from their memory, and then litigate the question anew, ho has an advantage, which it might be difficult successfully to resist.

His evidence, resting in written documents and in tire public registry, is preserved. Time weakens, and soon destroys that which was relied upon on tho other side. Kennedy may bo presumed to have been off his guard, taking no measures for its preservation, confiding in the result of the former s-'it, and in the faith of Sevey then pledged of record, under me eye and with the sanction of the court.

He now invokes the aid of the same court to enable him to escape from the consequences of an engagement, thus solemnly made, and to open a controversy, supposed to have been put at rest, after a fair trial, in which he had the fullest opportunity to be heard. Authorities have been adduced to show, that a stranger cannot take advantage of an estoppel, and is not bound by it. It does not appear to us, that Sevey was a stranger to the former suit. It was brought against his lessee. He presented himself and was received as a party; and we think he ought not now to be permitted to assume that he was not.

It was there determined that Kennedy’s title was better than his. The husband of the tenant held under Kennedy, and she under her husband. She is then privy to that judgment, and may take advantage of it. The estoppel raised by that judgment, between Kennedy and Sevey, became part of Kennedy’s title, and passed with the land to his assignees, and such an estoppel, when given in evidence, is to have the same effect, as when specially pleaded. Adams v. Barnes, 17 Mass. R. 365. The opinion of the Court is, that the decision of the Judge in the court below, ought to be sustained. Exceptions overruled.