1. "A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside." Code, § 110-501; Manry v. Stephens, 190 Ga. 305 (9 S.E.2d 58); Farmer v. Baird, 35 Ga. App. 208 (132 S.E. 260); Missouri State Life Insurance Co. v. Lovelace, 1 Ga. App. 446 (58 S.E. 93).
2. An analysis of the pleadings in a previous suit in ejectment, brought by the members of Mount Moriah Primitive Baptist Church against Robert Leon Slaughter for recovery of possession of a certain parcel of land, where a judgment was entered in favor of the church, together with a consideration of the pleadings in this, another suit in ejectment, brought by the members of the church against J. Arthur Moore (Slaughter's successor in title) for recovery of possession of an additional parcel of land, reveals that there is no identity of causes of action in the two suits, and that the question as to title to the particular parcel of land now sought to be recovered was not in issue, and was therefore not determined in the previous litigation.
3. No question being presented by the record as to whether or not there had been an estoppel by virtue of previous admissions in judicio, no ruling or intimation is made with reference thereto.
4. Under the foregoing rulings, the court erred in directing a verdict and entering a judgment sustaining the defendant's plea of res judicata.
No. 15574. NOVEMBER 13, 1946. REHEARING DENIED DECEMBER 2, 1946. STATEMENT OF FACTS BY JENKINS, PRESIDING JUSTICE. The members of Mount Moriah Primitive Baptist Church were plaintiffs in a previous suit in ejectment, brought against Robert Leon Slaughter for recovery of possession of a certain parcel of land identified in the petition as follows: "consisting of five acres, more or less, lying and being in lot 80, in the eighth district of *Page 662 Muscogee County, Georgia, and on which is located the Mount Moriah Primitive Baptist Church buildings and appurtenances; a spring and baptismal pool; also a cemetery to which petitioners claim title." On demurrer, this paragraph of the petition was amended by adding the following sentence: "And that said land is the same and identical property used for church purposes by said plaintiffs as church property for the church known and designated as `Mount Moriah Primitive Baptist Church' and being the only church and church property by such name in lot 80 in the eighth land district of Muscogee County, Georgia." This paragraph was still further amended by describing the land by metes and bounds, so as to encompass five specific acres in the shape of a square. The church's claim of title to the above premises was based upon the necessary allegations in the petition to show title by adverse possession, and were, in part, as follows: "and has maintained and used for baptismal purposes a spring and pool located on the northwest portion of said described land; and petitioners have protected, preserved, and cared for the land itself and the trees consisting mostly of oak and hickory growing thereon." In the answer filed by Slaughter, it was admitted that the church had been dispossessed of all that parcel of land described in the petition except two specific acres of the land encompassed within the area which by amendment had been set forth by metes and bounds, to which two-acre parcel of land the defendant specifically renounced claim of title.
After a trial on the issue as to title to the parcel of land in dispute, a jury returned a verdict as follows: "We the jury find in favor of plaintiffs the premises in dispute." A judgment was entered, to which no exceptions were filed, in which the church was awarded the five square acres as described in its amended petition by metes and bounds.
Subsequently the members of the church brought the instant suit in ejectment against J. Arthur Moore (Slaughter's successor in title), for recovery of possession of a one-square-acre parcel of land, identified in the petition as follows: "one acre, lying and being in lot 80 in the eighth district of Muscogee County . . having thereon a spring, a concrete baptismal pool, and a water pipe supplying said baptismal pool with water from the spring." The one-acre tract of land was further described by metes and *Page 663 bounds. It seems to be conceded by all parties that the land now sued for does not encompass an area which was included in the specific description set forth by the designated metes and bounds of the five-acre parcel of land, the dispossession of which was made the basis for the cause of action in the former suit by the church against Slaughter. The members of the church now claim title to the above described one-acre tract of land by virtue of adverse possession, and in this connection allege in their petition in part as follows: "during which time the property was used in connection with the religious worship and rites of their church, the concrete pool and water from the spring being used for baptismal purposes, and petitioners have protected, preserved, and cared for the land itself, and the trees thereon which are mainly oak and hickory."
To this petition Moore filed a plea of res judicata, alleging that the instant suit was based on the same cause of action as that of the previous suit brought by the members of the church against Slaughter, in which title to the one-acre tract here in dispute had been adjudicated adversely to the church.
The case proceeded to trial on the issue of res judicata, and the record of the proceedings on the former trial was introduced in evidence without objection, after which, on motion by Moore, the court directed a verdict in his favor. No evidence was offered by the members of the church in opposition to the plea of res judicata.
A motion for new trial was filed by them, in which the direction of the verdict was assigned as error, on the general grounds, and by amendment on the following special grounds: (a) The prior action was against a different defendant, and of a different subject-matter, in that it involved a different tract of land; (b) the court erred in directing a verdict before all the evidence for the plaintiffs and for the defendant had been introduced; and (c) because the identity of the subject-matter in the two suits was a question of fact for the jury to determine. The case is before this court by bill of exceptions from the order of the lower court overruling the motion for new trial as thus amended. 1, 2. The plea of res judicata filed by Moore in the second suit in ejectment raises but one decisive *Page 664 question — was the title to the one-acre tract of land now sought to be recovered an issue in the previous suit in ejectment brought by the church against Slaughter, the defendant's predecessor in title? The answer to this question will depend upon the pleadings in the former suit against Slaughter. Was the particular one square acre now sued for, and alleged to contain the spring and baptismal pool, put in issue in the former suit, merely because of the erroneous allegation made in the former petition to the effect that the spring and baptismal pool were contained within the boundaries of the square five-acre tract then sued for?
While the first petition by amendment identified the parcel of land, of which the church had been dispossessed, by specific metes and bounds so as to encompass an area of five square acres only, which measurements do not embrace the one acre now sued for, the petition in the former suit nevertheless specifically asserted that the land as then used for contained the "spring and baptismal pool." In view of the recognized rule of law to the effect that in determining boundaries to premises in dispute, courses and distances must yield to permanent physical monuments, natural or artificial (Code, § 85-1601); Brantly v. Huff,62 Ga. 532 (5), 536, which rule of law has application to descriptions contained in deeds (Harris v. Hull, 70 Ga. 831 (1 a)), and which has been applied to descriptions of land in dispute in suits in ejectment Veal v. Barber, 197 Ga. 555,561, 30 S.E.2d 252; Calhoun v. Babcock Brothers LumberCo., 198 Ga. 74, 77, 30 S.E.2d 872) — it is contended by the defendant in the present suit that the former pleadings must be construed to mean that, since the church had alleged that it had been dispossessed of the land on which the spring and baptismal pool is located, the title to the particular one square acre of land now sued for was thus put in issue by the former pleadings, irrespective of the fact that the land thus sued for was described by metes and bounds which actually excluded the same spring and baptismal pool.
Should we attempt to follow this contention of defendant, we find that, while the church has a verdict in its favor for the "premises in dispute," on which is located the spring and baptismal pool, if — as appears to be the case — the spring and baptismal pool were not actually located on the five-acre parcel of land sued for as described by metes and bounds both by the petition *Page 665 and in the judgment, it would be wholly impossible to frame a judgment in accordance with any certain intent of the verdict, as construed with the pleadings, so as to include any other particular land containing the spring and baptismal pool. The verdict, therefore, except as to the five-acre tract particularly described by metes and bounds, would be a nullity insofar as it might seek to recover the particular additional one square acre now sued for. Roberts v. Citizens Bank Trust Co., 33 Ga. App. 626 (127 S.E. 621); Manget-Brannon Co. v. White CrownFruit Jar Co., 20 Ga. App. 339 (93 S.E. 307). The fact that the church in its former suit might have erroneously alleged that the particularly described five squares acres, as sued for and recovered, contained the spring and baptismal pool, could not possibly be taken to afford the basis of claiming a recovery of the new particular additional one square acre now sued for. This seems altogether manifest when we consider that in an action for the recovery of land, the premises should be so fully described as will enable the sheriff to execute the writ of possession.Harwell v. Foster, 97 Ga. 264 (22 S.E. 994); Hicks v.Brinson, 100 Ga. 595 (28 S.E. 380); Crosby v. McGraw,133 Ga. 560 (66 S.E. 897). Therefore it is evident that the only parcel of land described with the required degree of sufficiency is the five square acres described by metes and bounds, erroneously alleged to contain the spring and baptismal pool; and that consequently the title to the new particular one acre now sued for was not put in issue or adjudicated by the previous litigation. It was therefore error to sustain the plea of res judicata on the theory that the title to the one acre now sued for was in issue under the pleadings of the former case.Sumner v. Sumner, 186 Ga. 390 (197 S.E. 833).
3. Although counsel for the defendant in the court below argue in their brief that the plaintiffs are estopped from maintaining the instant suit, by reason of having pleaded in their previous suit that the land sued for was the only church property in land lot No. 80 in Muscogee County — no decision is made and no intimation is given on the question as to whether or not there could be an estoppel by admissions in judicio, for the reason that such a defense was not specifically pleaded, nor were there allegations in the plea of res judicata which could possibly be taken as sufficient to raise such a defense, except such as were pleaded as having been *Page 666 contained in the former petition; and it appears that, by the prayers of the plea in the instant case, these allegations in the former suit were set forth for the one specific purpose of invoking the doctrine of res judicata; and it does not appear from the record that the trial court in the instant case was called upon to determine any question other than upon the plea of res judicata under the previous judgment. Were this question, which is now presented for the first time in the brief of counsel, properly before us for decision, various problems in connection therewith might arise. True enough it is that the members of the church in their former petition stated that they owned no land in the lot involved save the five square acres sued for by metes and bounds, and it now appears that they are suing for an additional square acre in the same lot, on which is located the spring and baptismal pool; but it will be observed that in the same petition in which the admission was made there was another allegation that the church occupied and had occupied the land on which the spring and baptismal pool was located, which now appears to be outside of the boundaries of the five square acres originally sued for — all of this — and perhaps whether the admission referred to was relevant to the maintenance of the previous suit might present questions for determination, which might or might not have a bearing upon the effect of any such admission in judicio. But, as already stated, we make no ruling or intimation on such a question, which is not now before us.
Judgment reversed. All the Justices concur, except Bell, C.J., and Duckworth, J., who dissent.