In a former suit of trespass, upon the close described in the declaration in this case, between the present parties, the defendant pleaded the general issue, and filed a brief statement of title in Brann and Harrifnan and justified under them. By the report in that case, which, with the judgment, is referred to, and made a part of this, it appears that the defendant offered to read in evidence a paper as an original deed, and that its execution was denied, and was not proved; and that he offered to prove the contents of a deed alleged to be lost, of the execution of which there was no proof. This evidence was rejected at the trial, and thereupon the defendant submitted to a default, which was to stand, if, in the opinion of the Court, the plaintiff was entitled to recover upon the evidence legally admissible, and if the evidence offered by the defendant was properly rejected. Judgment was subsequently rendered upon the default, by the full Court. Dunlap v. Glidden, jr. 81 Maine, 510.
The defendant, in this suit, claims to have acquired the title of Brann, and places his defence upon it, by pleading the general issue, and title in himself. The question now presented is, whether he is estopped to set up that title, by the adjudication in the prior suit. We think he is not.
The judgment, in order to be conclusive, must have been upon the same subject matter. Every point which might have been raised by the pleadings, is not necessarily involved in the decision. When the record of a judgment does not exhibit the grounds upon which it proceeded, it may be shown by parol proof, that matters which might have been admissible under the pleadings, were presented and considered in the adjudication, or that they were withheld. Seddon v. Tutop, 1 Esp. R. 401; Ravee v. Farmer, 4 T. R. 146 ; Phillips v. Berick, 16 Johns. 136; Wood v. Jackson, 8 *520Wend. 9; Bridge v. Gray, 14 Pick. 55; 1 Greenl. Ev. § 528, 532.
It cannot be determined by the record of the judgment, that the title of Brann was passed upon, and considered, in confirming the default in the prior suit. Or, at most, it would not afford conclusive evidence of a prior adjudication of the title, and proof aliunde is admissible to show that it was not, in fact, considered in the former action. And it appears, that that case turned upon other considerations than the title of Brann. The defendant failed to show any evidence of license or authority under the alleged owners, and their title was of no importance to him. He had no connection with it, and it could not have afforded him any protection, whatever may have been its character. It was not material to the result, was not presented for consideration, by the defendant, and could not have been determined by the Court.
An absolute title to the locus in quo is not essential, in the action of trespass quare clausum, and the defendant cannot be considered as admitting it to be in the plaintiff, by consenting to a default; nor is he thereby estopped, subsequently to assert that the title was then in himself, or in another, whatever may have been the form of pleading. By submitting to a default, unless under special stipulations, he, in effect, withdraws the issue from the Court and jury, and yields to the claim of the plaintiff, without surrendering other rights in jorcesenti, or in futuro.
The case must stand for trial.
Shepley, C. J., and Tenney, Rice and Appleton, J. J., concurred.