that case there is no escaping the conclusion that the former judgment between the parties in this action is conclusive; for it is a much stronger case for the application of the doctrine than the one cited. In the former action between these parties, the issues were made, submitted, tried, and found by the judge in favor of the defendant in such manner as to show the exact issues found, and a judgment upon the findings entered, such as should be entered on the merits, a judgment in form upon the merits, and not in terms a mere "dismissal out of this court," as in the case of House v. Mullen. This, therefore, must be regarded as a judgment rendered on the merits. (See, also, Durant v. Essex Co., 7 Wall. 109.) There was, in fact, an appeal in the former action, and counsel on both sides have referred to the opinion of the Supreme Court of Nevada on the appeal. (9 Nev. 248.) It is manifest that the Supreme Court also regarded the judgment as having been rendered on the merits, and affirmed it on the ground that the action was barred by the Statute of Limita tions. In the case of Aurora City v. We, the Supreme Court also says: "The better opinion is that the estoppel, when the judgment is on the merits, whether on demurrer, agreed statement or verdict, extends to every material allegation or statement which, having been made on one side and denied on the other, was at issue in the cause and was determined in the course of the proceeding." (7 Wall. 103.) And Mr. Justice Miller, who alone dissented, stated the rule to be that "when a former judgment is relied on, it must appear from the record that the point in controversy was necessarily decided in the former suit, or be made to appear by extrinsic proof that it was in fact decided." (Id. 106.) The case under consideration is, in my judgment, c'early within the very restricted doctrine as stated by Mr. Justice Miller; for it appears by the record itself what issues were submitted, and what issues of fact were in fact found, at least so far as the defense and title founded upon the Statute of Limitations are concerned.

The discussions in the courts have heretofore mostly arisen upon general verdicts where it could not be known from the verdict and pleadings upon what particular issues the jury passed. In such cases, some authorities hold that the party

relying on the estoppel must show by extrinsic evidence what issues of fact were determined, and this is the view which Mr. Justice Miller seems to hold in the dissenting opinion cited. Other, and apparently a majority of cases hold that a general verdict is itself prima facie evidence that all the issues of fact were determined, and that the party seeking to avoid the estoppel must show by extrinsic evidence what points in issue were not in fact determined by the jury; and the Supreme Court seems to go to this extent at least. But no such question can arise on special findings like those in this case where the record itself shows the exact issues found by the judge. The authorities cited by complainant's counsel relate to general verdicts, and are therefore inapplicable.

It is urged that upon the findings there is no estoppel, because the estoppel is not mutual, for the reason that, if certain findings had been the other way, it would not have been conclusive on both. It is not necessary to inquire what might have been the effect, had the findings and judgment. been different. The question is, what is the effect upon both parties of the findings and judgment under consideration, not what the effect of some other findings and judgment might be. Are these findings and judgment conclusive on both parties, if conclusive on one? If so, the estoppel is mutual within the meaning of the rule. This point is also judicially determined in Sheldon v. Edwards, 35 N. Y. 288, before cited. There can be no doubt, I think, that in t is case both parties are concluded if either is, and the estoppel is therefore mutual within the rule.

It is further argued, that if this adjudication is conclusive it might result in injustice to the complainant; for if, on appeal, the Supreme Court should come to the conclusion that the finding upon the issue of the Statute of Limitation was not supported by the evidence, the judgment could not be reversed, because it is still right on the issue that the plaintiff was not in possession, and the court could not disturb a judgment which is not erroneous. We have already seen that the Supreme Court of the United States, in House v. Mullen, did reverse the judgment where there was no technical error-where the judgment was not erroneous in the sense in which counsel use the term for the purposes of this

argument--and on the sole ground that all the points covered by it would be res adjudicata and operate as an estoppel, whereas it appeared to the court that some of the points ought not to be considered as finally determined, which, upon the record as presented, would be concluded. This reversal, doubtless, proceeded upon the idea that the judgment was broader in its scope and more advantageous to the plaintiff than he was entitled upon the record to have it. So in this case, if the defendant in the former action obtained a judg ment covering the entire merits when, in fact, either upon the issues found, or upon the issues correctly found, after determination of the appellate court, that other issues were improperly found, he ought only to have had judgment of non-suit or dismissal without prejudice, the appellate court would undoubtedly have reversed or modified the judgment and the latter might be done under the practice in Nevada. This would certainly be doing no vain thing, as insisted by counsel, but doing what a party would be legally entitled to claim at the hands of the court. The court would have no discretion to allow a judgment to stand which would conclude a further litigation of issues, that they were satisfied from the record ought not to be concluded, simply because the judgment in its present form might, also, give proper effect to the determination of other issues properly determined.

Under the system of practice in Nevada at the time, there were two appeals allowed, one from the judgment and one from an order granting or denying a motion for new trial, wholly independent of each other, and which might be taken separately or together, and upon either of which the judgment in a proper case might be modified or reversed. Upon an appeal from a judgment, only questions of law affecting the validity of the judgment could be considered. The facts could not be reviewed. If a party desired to have the facts reviewed, it was necessary to move for a new trial, and to prepare statement as the basis of the motion, specifying the precise issues or points upon which the evidence was insufficient to sustain the verdict or finding, and to insert all the evidence bearing upon that precise point, and no more. Upon a denial of the motion for a new trial, the party had his appeal; and the

statement for new trial constituted the record upon which the appeal on the points specified was heard. Should the verdict or findings be found to be unsupported by the evidence wholly or in part, it might wholly, or to the extent found erroneous, be set aside. If the finding set aside is material to support the judgment, the judgment would necessarily be reversed, But if the other findings, not disturbed, are still sufficient to sustain the judgment, the judgment would not, necessarily, be reversed, but it doubtless might be. If not reversed, the vacating of the findings on some of the issues not necessary to sustain it would take those issues out of the operation of the rule relating to res adjudicata, because they would appear not to have been determined. Thus, in the case in hand, suppose there had been another express finding, that the plaintiff in the former action was not in possession at the commencement of the action, and on motion for new trial, or on appeal from the order denying a new trial, the court should be satisfied that the finding as to the adverse possession was not supported by the evidence, but that the finding of want of possession at the commencement of the action was correct, the finding on the issue as to adverse possession could be set aside without disturbing the other findings. But the judg ment, if correct on the remaining issues need not be disturbed, or if too broad in its scope it could be modified and properly limited. Thus the rights of the parties could and would be protected. New trials as to some particular issues were often granted, even under the old system of practice, without disturbing the verdict or findings on other issues. (Wiggins v. Smith, 54 N. H. 213, 223-4; Robbins v. Townsend, 20 Pick. 351; Winn v. Columbian Insurance Co., 12 Pick. 288; Hutchinson v. Piper, 4 Taunt. 555.) The practice in California and Nevada affords still greater facilities for pursuing this course, as is sometimes done. (Argenti v. San Francisco, 30 Cal. 459.) Doubtless, if it was more frequently done, it would greatly redound to the advantage of the parties, and conduce to the administration of justice.

But in this case, if the finding upon adverse possession should be set aside, as we have seen, there would be no finding at all on the issue as to plaintiff's possession at the commencement of the action, as that fact is only inferred from

the finding on the larger issue of adverse possession for a period of time covering the commencement of the suit, and the judgment would necessarily fall on the vacation of this finding, unless the other facts found also show the better right to be in defendant. The difficulty suggested, therefore, if any there be, could not apply to this case, and the argument is without force here, whatever might be said had there been an express finding on the other issue. In this case, as we have seen, there was an appeal from the order denying a new trial upon the issue as to the adverse possession, and the Supreme Court held the finding to be amply supported by the evidence. Thus, it is manifest that the power of the courts is ample by vacating one or more of the findings, and by reversing or modifying judgments on appeal so as to restrict their operation, to fully guard and preserve all the rights of litigants without encroaching upon the application of the wholesome doctrine of res adjudicata. Speyer v. Ihmels, 21 Cal. 28, 288-9, is another example of the reversal of a judgment technically correct on the record for the protection of the rights of the parties. Upon my view, therefore, there is nothing either upon authority, or upon principle, to take the case out of the rule of estoppel invoked by defendant. If I am right thus far, then it was finally and conclusively determined in the former action between the same parties that the defendant had the title as against the complainant; for the adverse possession for the time prescribed, not only barred the action to recover the possession, but vested the title as against complainant in the adverse possessor-the defendant. See Arrington v. Liscom, 34 Cal. 380-85, and the numerous cases · there cited; Cannon v. Stockmon, 36 Cal. 540; and Leffingwell v. Warren, 2 Black, 605, where it is said by the Supreme Court of the United States that "the lapse of time limited by such statutes not only bars the remedy, but extinguishes the right and vests a perfect title in the adverse holder." A title so acquired will be quieted in the adverse holder on a bill in equity for that purpose, even against the holder of the paper title barred. (Arrington v. Liscom, 34 Cal. 386; Alexander v. Pendleton, 8 Cranch, 462.) The latter case, and the statutes under which it arose, were fully examined in Arrington v. Liscom. The other findings, also, seem to show title in the defendant.