dissenting.
This case came before the court below on an issue formed on an affidavit of illegality to an execution which had been levied on property.claimed by the defendant as a homestead. The ground of illegality, as set forth in the defendant’s affidavit, is that the execution is proceeding illegally against him, because the land levied on had been set apart for the benefit of himself and family as a homestead, and that the debt was contracted in 18G9, and the homestead is not subject to levy and sale. On the trial of the issue the jury found the homestead subject to the execution. It appears from the bill of exceptions that the plaintiff offered in evidence at the trial the record of the suit and judgment on Avhich the execution issued, from Avhich it appears that the defendant Avas sued on an account for $150 00 for the rent of a house and lot for the year 1868. To the .plaintiff’s action the defendant pleaded that he was not indebted to the plaintiff in manner and form as set forth in plaintiff’s declaration, that plaintiff Avas indebted to him the sum of $225 00, by an agreement Avith defend*99ant to give him the said amount of house rent, and the further sum of $75 00, in consideration that the plaintiff’s son should board in the said house rented to him by the plaintiff in 1869. On the trial of that suit the jury found a verdict for the plaintiff for the sum of $150 00, with interest from the first day of February, 1870. Judgment was entered on the verdict, and the execution which issued thereon was levied on the defendant’s homestead. The defendant offered to prove by one of the jurors who rendered that verdict that the debt on which the execution was founded was contracted subsequently to 1868, for the purpose of'showing that his homestead was not subject to the payment of that debt. The court rejected the testimony offered, on the ground that parol evidence could not be admitted to contradict the record in the original suit, and if parol evidence could be admitted for that purpose one of the jurors who rendered the verdict was not a competent witness to prove what the jury intended to find by their verdict.
It appears on the face of the record of the suit in which the judgment was obtained, that the plaintiff* sued the defendant for $150 00 for the rent of a’house and lot for the year 1868. The defendant joined issue with the plaintiff on the allegation that the contract was made for the rent of the. house for the year 1868, and alleged that the plaintiff liad agreed to give him that amount of house rent, and the further sum of $75 00 for the board of his son-in said house in 1869. On the trial of that issue the jury found a verdict for the plaintiff for the sum of $150 00 for the rent of the house for the year 1868, as alleged in his declaration. The issue made by the pleadings in that suit, as shown by the record, was whether the defendant was indebted to the plaintiff for the rent of the house for the year 1868, and the jury found that he was so indebted. There is no allegation in the pleadings of any contract, express or implied, for the rent of the house and lot for the year 1869 which could have authorized the jury to find a verdict for the rent thereof for that year. The allegation of the defendant in his plea is that the plaintiff *100agreed to give him the rent for the house for boarding his son in 1869, not that he rented the house from the plaintiff in 1869.
The distinct issue made by the record in the former suit was whether the defendant was indebted to the plaintiff $150 for the rent of the house and lot for the year 1868, and'there is no allegation in the record which could have authorized the jury to have found a verdict for the rent of the house for any other year than the one alleged in the record offered in evidence. There were two distinct issues made by that record— first, whether the contract was made by the defendant for the rent of the house for the year 1868, as the plaintiff alleged in his declaration; second, whether the defendant was entitled to his set-off for the board of the plaintiff’s son in 1869, as alleged by the defendant in his plea. On the trial the jury found both issues in favor of the plaintiff against the defendant. Was the parol evidence offered by the defendant at the trial for the purpose of showing that the verdict of the jury was rendered in that case on a contract made for the rent of the house in 1869, admissible in view of the allegations contained in the record offered in evidence by the plaintiff? In my judgment, it was not, for the reason that it contradicted that record; in other words, the parol evidence was offered to contradict the judgment of the 'court which had been rendered on the issue made between the parties by the pleadings in that record. But it is said that inasmuch as the jury found a verdict for the plaintiff for $150 00, with interest from the 1st day of February, 1870, that they must have intended to have found that the contract for the rent of the house was made in 1869. The reply is that there is no allegation in the pleadings contained in the record which would have authorized them to find that fact. The verdict was rendered on the contract as alleged in the pleadings, and the only contract alleged therein was made in 1868. The fact that the jury foui^d interest on the contract alleged in the pleadings only from February, 1870, does not prove that the contract was not made in 1868, as alleged; it only proves that the jury, for *101some good reason, equitable or otherwise, apparent to them, thought that the defendant ought not to pay interest on the alleged contract until 1st February, 1870, and that is all that can be fairly said of it. In no legal sense can it be said that because the jury found interest on a contract alleged to have been made in 1868 only from the 1st of February, 1870, that therefore they intended to find that the contract was made in a different year than the one sued on, the more especially as there was no allegation in the pleadings which would have authorized them to have done so. , The distinct issue was made by the pleadings in the former suit as to whether the contract for the rent of the house was made between the parties for the year 1868, and that issue wras found against the defendant in that suit, and a judgment, as evidence between them as to matters directly in issue, was conclusive until reversed or set aside: Code, 3826.
In my judgment, it would establish a dangerous precedent to allow parol evidence to be admitted to contradict the records of the courts, and to show what was the intention of the jury in finding their verdict, two years after the same had been rendered and judgment entered thereon, as in this case. The verdict of a jury may be amended in mere [matter of form after the jury have dispersed; but after it lias been received and recorded and the jury dispersed, it cannot be amended in matter of substauce, either by what the jurors say they intended to find, or otherwise: Code, 3492. Besides, the defendant in this case has had his day in court; he has been heard in relation to the contract alleged to have been made by him in 1868, and judgment has been rendered against him thereon, and he cannot, by an affidavit of illegality, go behind that judgment and allege that it was rendered on a contract made for a different year than the one alleged in the record of that judgment: Code, 3671.
In the view which I have been enabled to take of this case, on the statement of facts disclosed by the record,' I am of the opinion that the judgment of the court below should be affirmed.