His Honor, Judge Winston, at the October Term, 1902, rendered judgment that the plaintiff be restored to the possession of the land from which he had been wrongfully evicted, and recover one-half the crops made. The execution of this judgment was prevented by the appeal of the defendant, who remained in possession until the expiration of the plaintiff's term, gathered and sold the crops. While it may be that the present plaintiff may have had the value of the crops ascertained and judgment therefor at the next succeeding term of court, the present defendant having failed to perfect or prosecute his appeal, he was not (544) compelled to do so. In this action he relies upon the judgment as an estoppel upon the defendant. It is an estoppel to the extent of what was decided or should have been decided. It does not operate to prevent the present defendant from showing the value of the crop and what portion of it he is entitled to retain for advancements made before the eviction under the terms of the contract. By his wrongful act in evicting the plaintiff he does not forfeit his rights under the contract and the statute as landlord which had accrued to him. The record shows that the plaintiff was evicted about 1 May; that the defendant furnished guano, cotton seed meal and cotton seed used upon the crops. The date at which these articles were furnished is not given, but we may take notice of the season for planting and find that they must have been purchased or furnished at or about the time of the eviction. We infer from the record that the crop was not planted, as the controversy grew out of a difference between them as to what crop should be planted. However this may be, the defendant should be allowed a credit for the guano, cotton seed meal and cotton seed used in planting and making the crop, as the use of them was necessary to the planting and making the crop and in no way affected by the eviction. In regard to the amount paid for labor the defendant may not have credit. Having, as *Page 395 the record shows, and for the purpose of disposing of this appeal, conclusively so, wrongfully evicted the plaintiff and prevented him from doing the work, he cannot charge him for having it done by some other person. This would be to take advantage of his own wrong.
We are not sure that we understand the last two items on the account for corn and hay furnished to feed the mules "over amount furnished." It does not appear when or under what circumstances these articles were furnished. It is possible that these questions may be adjusted under the advice of the (545) intelligent counsel representing the parties. There are few controversies more difficult to adjust than those arising out of farming contracts. It is a subject of congratulation that they are usually settled by mutual concessions. This case would, as it seems to us, seem to offer an opportunity to do so. There must be a
New trial.