Both parties claim under David P. Morrow, so by the general rule, neither can deny the fact, that the title was at one time in him, and the question is, did the deed ■of David P. Morrow, dated January 13th, 1869, pass the title to the plaintiff.
The defendant, “by way of plea,” relies upon an estoppel of ■record, and avers that the title of plaintiff derived under this deed has been passed on, and judicially found to be oí no force or legal effect, and to support this position, offered to putin evi‘dence the record of an action tried at Fall Term, 1869, in which ■he was plaintiff, and John and David P. Morrow were defendant for a trespass committed by them on the land in dispute; the answer in that action admits the trespass, and avers by way of *461defense that David P. Morrow, was under tbe age of 21 years at the time lie executed the deed to the plaintiff, (Gamble) 5th October, 1868, and was of the age of 21 years when he executed the deed to Palls 18th of January, 1869, and that the defendants committed the alleged trespass as tenants of Falls, and justify under his title, so the title of Palls was doubly at issue.
The jury find all the issues in- favor of plaintiff, (Gamble,) and there was judgment. The defendant further offered to prove that Palls, the plaintiff in this action, instigated the defendant in the first action to commit the trespass, aidod in defending the action, employed counsel and paid the costs, and the deed of David P. Morrow to Falls was read in evidence on the trial.
liis Honor being of opinion that the record, in conjunction with the other facts offered to be proved, did not create an es-toppel on Falls, rejected the evidence. This is the main question in the case.
We concur with liis lienor in the opinion that the record in conjunction with the facts outside of the record, showing the-participation oí Falls in respect to the action did not create an estoppel, and conclude him from relying in this action, upon the title derived under the deed of David P. Morrow to him 15th January, 1869.
The issue upon which a ease turns is not as distinctly exhib-ed on the record, by the complaint, answer and replication under the Code of Civil Procedure, as it is by the declaration, plea, replication “by way of traverse,” and the similiter, under the old mode oí pleading-.
But after consideration, we do not give our assent to the proposition oí Mr. Bynum, that under C. C. P. “the issue is-so covered over and mixed up,” as,to put certainty of pleading out of the question, and therefore, there cannot under C. C. P. be an estoppel of iccord.
Our conclusion is, that if in an action for injury to land, the defendant by his answer avers title in himself, admits the al--*462leged trespass, and the right of the plaintiff to have judgment, (that is, gives color as the books call it,) unless the defendant shows a good title in himself, the verdict and judgment create .an estoppel in respect to the title of the defendant so put directly at issue, by the record, in the same way as the plea “lib-erum tenementum” in an action, “trespass quare elausum” did under the old' mode of pleading.
The principle of estoppel of record, by which an end is put to litigation, and parties and privies are concluded, and cannot be heard to make an averment, contrary to the finding of a jury fixed by judgment, in regard to the fact, precisely put in issue — underlies -and is acted upon in all modes of proceedure. True, under C. C. P., the complaint and answer are usually so diffuse that an issue is seldom joined, with the precision which is required to work an estoppel, but whenever there is the requisite precision, the record concludes both of the parties and their privies. Had Gamble brought his action against Palis, for trespass on the land, and Palls in his answer had admitted the possession of Gamble, and the committing of the alleged trespass by hio orders, and put the defense on his title, under the deed of Morrow, January 13th, 1869, a verdict and judgment would have worked an estoppel in the samo way it would have done in the old action “trespass •quere elausom,” under the plea “liberum, tenementum.” Indeed, under C. O. P., in an action for land, where the complaint avers title in the plaintiff, the answer admits possession, denies the title of the plaintiff, and sets up title in the defendant, a verdict and judgment will conclude the parties and privies in respect to the title. So the action for land under 0. 0. P., differs in this respect from an action of ejectment, where there -is no bar — as the parties are»changed — and no estoppel, because of the generality of the pleading. In an action for land, the plaintiff, if he does not wish the action to try title, should merely allege that he is entitled to the possession, and that the defendant withholds it, to his damage — and the defendant if he *463does not wish the action to conclude the title, should in his answer merely deny the allegations of the complaint, so as to make it in effect a plea of “not guilty,” or the “Gen. issue.” See Harley Houston, 64 N. C.
Mr. Bynum on the argument, assumed that the judgment in Gamble v. Morrow, is set up in the answer as a bar, to the present action, like a plea of former judgment between the same parties for the same cause of action. It the first action had been Gamble v. Falls, the judgment would have been a bar to this action, for the cause of action is not the same. In this, it is for the land, in that, it was for an injury to the possession.
But he tv,as mistaken in that view, for the defense is not put on the idea of a bar to the second action, but as an estoppel'of record in respect to the title of Falls — and as we have seen the verdict and judgment, would have worked an estoppel of record, if Falls hacl been a party defendant in the first action, but Falls was not a party to the first action, and we have the question, is he estopped as a privy of David B. Morrow ?
There are privies in blood, as the heir, privies in estate, the particular tenant and remainderman “and reversioner, and privies in law as feoffer and feoffee. In the general sense all who derive title from, or claim under another, are his privies, and are bound by the estoppels and conditions annexed to the estate, at the time it rested. Gamble and Falls are both privies of David P. Morrow, as both claim title under him, and by a general rule are concluded, as to the fact that the title was at one time in him. See Frey v. Ransour, at this term, but the estoppel now set up against Falls, is not that arising out of the deed of Morrow, but one growing out of the verdict and judgment, in the action which Gamble after-wards brought against John and David P. Morrow, and in respect to that, it is the same, as if the action had been against William Orpe, if he instead of the Morrows had committed trespass by the command of Falls. Simplify the question by *464disconnecting it from the fact,that both Mills and Gamble claim-under David P. Morrow in respect to the deeds and substitute, William Orpe as defendant in the first action, and there is no ground upon which Falls can be made a privy of record, he does not claim under him, on the contrary Orpe is a tenant of Falls, and acted by his orders in committing the trespass; so Falls is not a privy in the legal signification of the term, but he is an accessory before and after the fact, insti gating, aiding and abetting the álteged trespass. Falls might have made himself a party of record as landlord, but he would have been at the disadvantage of stepping into the shoes of his tenant; on the other hand Gamble might have made Falls a defendant. This he did not see proper to do, so"Falls is not a party or a privy of record, ho is but an accessory.
The defendant says, true, Falls is not a privy of record, but he instigated Orpe to commit the trespass, aided in the defense of the action, employed counsel and paid the cost, and Orpe read the title deed of Falls in evidence on the trial. Take all this to be so: how can these matters dehors constitute him a party or a privy so as to work an ostopple of record ? If this be so, Falls would loose his title not by record or by deed, but by parol evidence, a thing never before heard of except in one case Kennersly v. Orpe, 2 Douglass 517, on which case Lord Ellenburgh comments in this wise in Outram v. Moorewood, 3, East 366.
As to the case of Kinnersly v. Orpe it is extraordinary that it ever should for a moment, have been supposed that there could be an estoppel in such a caso <fcc.
Mr. Bynum on the argument showed the unfairness oí treating Falls as a party or privy of record, admitting him to have been an accessory before and at the fact, by this proposition, which was not met and cannot be met. After Falls took the deed from him, the declarations or admissions of Morrow, were not admissable in evidence against Falls — how then can Falls be concluded by a virdict and judgment, afterwards rendered *465against Morrow which may have been based upon the declarations and admissions of Morrow after he executed the deed to Falls who was not party to the action, although conducting it outside, he could not be recognized by the Court and had no-right of appeal or otherwise ? One who conducts a suit as guardian of an infan t is not estopped by the record for he is not a party. Branch v. Goddin, 2 Winston 105.
The evidence in regard to the entries on the school register was competent. These entries were not offered to prove the . truth of the facts therein set out, but merely as independent circumstances tending to corroborate the witness John Morrow. The evidence rests on the same principle, that although a record is not evidence to prove the truth of the facts therein • set out, except between parties and privies, yet when the mere * existence of such a record is material to be proved, it is evidence of that fact against every one and the rule ilres inter alios aotar>" has no application. So here the mere existence of the fact that the figures 10 and 11 were entered on the school register • by the teachers of the respective years is evidence not to prove - the truth of the entries, but to show that in point of fact suchn entries were made ante litem motam.
Pee Curiam. Judgment affirmed..