Opinion of the Court-Niles, J.

tried and decided in the case of Thurston v. Clink. This judgment is final and conclusive between the parties upon all matters determined or put in issue by the pleadings in said cause. (Gray v. Dougherty, 25 Cal. 272; Caperton v. Schmidt, 26 id. 479; Vance v. Olinger, 27 id. 359; Garwood v. Garwood, 29 id. 521; Mahoney v. Van Winkle, 33 id. 459.) We do not assert that the State of California is concluded by the judgment referred to. The State was neither a party nor privy to the suit, but we do say that the defendant is concluded by said judgment, and is estopped from setting up title in himself or the State of California; these questions having been expressly decided in an action to which he was a party.

The plaintiff produced in evidence a patent for the land in controversy from the Government of the United States. The validity of this patent could only be questioned by a party who was in privity with the common source of title. A mere intruder, who did not trace title to the State or show possession by license of the State, could not defend against the patent by asserting title in the State. (Doll v. Meador, 16 Cal. 331; Rhodes v. Craig, 21 id. 423; People v. Stratton, 25 id. 251; Carder v. Baxter, 28 id. 101.)

The sixteenth section of the Practice Act provides that in case of a transfer of interest pending a suit, the action may be continued in the name of the original party; this section applies as to actions of ejectment as to others.

By the Court, NILES, J.;

This was ejectment to secure possession of the southeast quarter of section twenty-six, township three north, range seven east, in the county of San Joaquin. The complaint averred plaintiff's seizin and ownership in fee, and entry and ouster by the defendant, in the usual form.

The defendant, by his answer, in addition to a general denial, averred, among other things, that the land in controversy was swamp and overflowed land, and as such was the property of the State; that in October, 1865, one Bartlett purchased the land from the State in the manner pre

Opinion of the Court-Niles, J.

scribed by law, and received a certificate of purchase, which he afterward assigned to the defendant, who thereby became by law entitled to the possession.

At the trial the plaintiff, after giving in evidence a patent from the United States for the demanded premises, offered in evidence a judgment roll of the same District Court, in the case of Thurston v. Clink and others. The plaintiff objected to the introduction of the judgment roll, and the leading questions in the case are upon the propriety of the admission of this evidence, and its effect if admitted.

The suit in which the proffered judgment was rendered was brought by Thurston to quiet his title to the identical. land which is the subject of controversy in this action. The averments of the complaint in regard to the character of the land, its purchase by Bartlett from the State, and the assignment of the certificate of purchase to Thurston, were substantially the same as those of his answer in the present action. It averred, in addition, a fraudulent procurement by Clink (then defendant) of a patent from the United States, and prayed that Clink be enjoined from using the patent as evidence of title against him, and for the purpose of dispossessing him of the premises, and that he be ordered to convey to him the title acquired by virtue of the patent, and for general relief.

Clink, by his answer, took issue upon all the material allegations of the complaint, denying that the land was swamp or overflowed land, and denying any title of the plaintiff, legal or equitable, therein, and averring the title to have been in the United States Government, from whom he purchased in good faith as a qualified pre-emptor, and received a patent. At the trial it was submitted to a jury, in the form of special issues, to determine if the land was swamp and overflowed within the meaning of the Arkansas Act; and they found substantially that the southwest quarter section in controversy was swamp and overflowed land, and that the remaining three quarters were not of that character. Subsequently the remaining issues under the pleadings were tried by the Court, a jury having been waived, and findings were made which purported to be "in

Opinion of the Court--Niles, J.

addition to the facts found by the jury," and were to the effect that in November, 1865, one Bartlett purchased the land as swamp and overflowed land, in his own name, but in reality with the money of the plaintiff Thurston, and under an agreement with Thurston that the purchase should be for his use and benefit solely. From these facts the Court found, as a conclusion of law, that the purchase under which Thurston claimed was not made in accordance with the provisions of the Act of April 27th, 1863, under which it purported to have been made, and was a fraud upon the State of California; that the plaintiff was not entitled to recover; and a judgment was rendered that "Thurston, the plaintiff, do have and recover nothing by this action against the defendants," and that the defendants have their costs. Several objections were made by counsel for the defendant to this evidence.

1. That the judgment was not signed either on the roll or elsewhere by the Judge or Clerk of the Court. It is not required that a judgment should be signed by the Judge or Clerk, and as the judgment roll was an original record of the Court in which it was offered, it required no exemplification.

2. That there was "no allegation of the existence of the record in the plaintiff's complaint."

Conceding the general rule to be as claimed by appellant, that estoppel by former judgment must be specially pleaded, it does not apply where no opportunity to plead the estoppel is given. In such case the record may be given in evidence with the same conclusive effect as if it had been specially pleaded. (Flandreau v. Downey, 23 Cal. 358; 2 Smith's L. Cas. 444.) The plea of a former adjudication could have no place in the complaint. It was an ordinary complaint in ejectment. The answer presented no new matter which the plaintiff was called upon to contradict by pleading. So far as the point under consideration is concerned, it amounted to no more than a general denial; for the detail of the series of acts through which he claimed the right of possession were merely averments of evidence. The estoppel could only be availed of by the plaintiff to defeat a claim of right

Opinion of the Court-Niles, J.

or title which the defendant might or might not prefer; and under no recognized system of pleading could it be properly presented in the complaint.

3. It is urged that the evidence, if admissible at all, was not relevant and material at the time it was received, and before the defendant had attempted to prove any of the facts constituting his defense. No doubt the introduction of the evidence at this time was irregular. It was in strictness. rebutting evidence merely, and only available to the plaintiff in an attack upon the title or right which the defendant might endeavor to establish. But if the judgment offered is to have the effect claimed for it by the plaintiff, of a conclusive estoppel upon the defendant, it cannot be material at what stage of the trial it was introduced; for by no possible means could its effect as an absolute bar be avoided. The defendant, therefore, could not have been injured by the irregularity, and we should not reverse the judgment merely because the strict order of trial was not preserved in the introduction of evidence.

4. It is not seriously questioned that the record of the judgment in the case of Thurston v. Clink, if properly admitted in evidence, as we hold it to have been, concludes the defendant from setting up any right of possession derived through Bartlett's certificate of purchase from the State. The validity of defendant's claim under that certificate was made an issue, which was distinctly found adversely to the defendant, and determined by the final judgment. But the defendant contends that the title of the State to the premises in controversy was not adjudicated in the former case, and that he is not now precluded from defending his admitted possession, by showing an outstanding title in the State superior to that derived from the United States, upon which plaintiff relies.

The State was not a party to the suit, and of course is not bound by the judgment. But the character of the land, as being swamp and overflowed, or otherwise, was directly in issue, and was submitted to a jury for determination, and a verdict was rendered. It may be conceded, for the sake of the argument, that a special verdict in an equity case is only

Opinion of the Court-Niles, J.

advisory, and may be entirely disregarded by the Court, and would not, therefore, necessarily have the conclusive effect of a final adjudication. But it sufficiently appears here that the verdict was adopted by the Court, for the subsequent examination of the case purports to have been for the determination of "remaining issues," and the findings of the Court to have been "in addition to the facts found by the jury." The right of the then plaintiff to the possession of the quarter section in controversy depended both upon the character of the land and the regularity of his proceedings to obtain the title of the State, if it should be found to be swamp or overflowed; and the fact that the divided three quarters were not swamp or overflowed was found by the Court, and determined by the judgment, as well as the other fact of the entire invalidity of plaintiff's proceedings to procure the title.

We are of opinion, therefore, that the Court did not err in enforcing against the defendant in this case the well settled rule that prohibits a party from agitating a second time a question, which has been once finally determined between the same parties by the judgment of a Court of competent jurisdiction.

The conveyance by the plaintiff to Dudley & Carr, pending the action, could not affect, in any degree, the right of the plaintiff to recover; and the evidence that the deed was intended as a mortgage, though entirely immaterial, could work no injury to the defendant. (Moss v. Shear, 30 Cal. 475; Calderwood v. Peyser, 31 Cal. 336; Barstow v. Newman, 34 Cal. 91.)

Judgment affirmed.