It seems to me very clear in this case, that the court below erred in allowing this record in the suit in the Superior Court between Beilly and these defendants and Cornell to be given in evidence to establish the fact, that the conventional relation of landlord and tenant existed between the parties.
The object of that suit was to have the deed given to Cornell and Johnson declared to be a mortgage only to secure the repayment to them of the principal sum of $5,600 advanced by them to Mr. Shea, and the interest thereon; and the only question really in issue in that suit, so far as these parties were concerned, was whether the deed held by Johnson and Cornell was held by them as a mortgage to secure the payment, of the said sum. The decree of the Superior Court dismissing the suit and complaint, only adjudged the fact that they did not hold the deed as a mortgage, and that Beilly was not entitled to a decree declaring that deed a mortgage to secure the payment of $5,600. The issue in that suit in nowise involved the question whether Beilly was or was not the tenant of Cornell and Johnson, and consequently the judgment-record in that case could not be evidence of the fact.
It is only necessary to state a few familiar principles of law to show that must be so. It is a familiar rule of law, that facts found by a former decree which are not necessary to uphold the decree do not conclude the parties. (Coit a. Tracy, 5 Cow., 265, 276 ; 2 Cow. & Hill's Notes, 917, and eases there cited.)
And though a decree in express terms profess to affirm a fact, if such fact was immaterial in the case, the decree will not conclude the parties as to such fact. (2 Day, 138; 8 Conn., 268.)
A judgment concludes the parties only as to the grounds covered by it, and the facts necessary to uphold it. (2 Cow. & Hill's Notes, 826.)
In order to make a record evidence to conclude any matter, *421it should appear that that matter was in issue. (Manning a. Harris, 2 Johns., 44; Jackson a. Wood, 3 Wend., 27; 1 Esp. Cas., 43; 4 Cow., 276; 4 Day, 274, 431.)
The fact whether Reilly was or was not the tenant of Johnson and Cornell not being in issue -in that suit, and the fact being wholly immaterial to support the judgment given in that case, the record is not evidence to establish the fact. That this fact, although found by the judge as fact in his findings, was wholly immaterial, and that the judgment given in that case did not in the least rest upon that, is most manifest from the pleadings in the case and the judgment itself.
The relief which the plaintiff Reilly demanded in his complaint in that suit was, that the said deed to Cornell and Johnson might be declared to be a mortgage, and stand as security for $5,600, and that they be enjoined from asserting any other or different title to the said premises under the said deed, &c. It follows, therefore, that the court below erred in allowing this record to be putin evidence to establish the relation of landlord and tenant between these parties. The court also erred in submitting this record to the jury, and in submitting it as a question for the jury whether this record did or did not show that Reilly was the tenant of Johnson and Cornell. The jury must have found the fact from this record alone, for there is no other evidence in the case from which they could find it.
I advise'the reversal of the proceedings in the court below, with costs to be taxed.
Judgment for the relator.
Present, Leonard, Clerke, and Mason, JJ.