The opinion of the court was delivered,
by Thompson, C. J.The material question on this record is whether the court below erred in holding the order dismissing the bill in equity filed by the defendants below against Peter M. Row, the ancestor of the plaintiffs, and ordering theni to pay the costs, as conclusive between the same parties and their legal representatives in this suit. Holding it to be so, the learned judge below overruled the defendants’ offer of testimony, which was very natural, on their theory of the matter in dispute.
The bill in equity filed by the defendants below and dismissed, the plaintiffs’, claim, covered the very ground of controversy here; namely, that the plaintiffs’ title is absolute and unaffected by any trust, and not in the nature of a pledge or security for money advanced for the ancestor of the defendant Gurtner, to enable him to purchase the land in controversy. If the same question be the material matter in issue now that was determined in the equity suit against-the defendants, it must be admitted that it was concluded by the decree in equity: Saylor v. Hicks, 12 Casey 392; Kelsey v. Murphy, 2 Id. 78; and cannot be again controverted by the parties thereto.
But as this is an estoppel by matter of record, we must look to see what the record says, what it was that the plaintiffs claimed by their bill. ' Whatever may have been intended, the only prayer in the bill was for a discovery by the answer of the defendant Row of the several matters averred to be true in the bill. After reciting them the bill says, “ in consideration of which, and also that your orators may have discovery of the matters aforesaid, and to the end therefore, that the defendant may, if he can, show why your orators should not have the relief hereafter prayed for, and may on his oath, and according to the utmost of his knowledge and belief, full, true and perfect answers make, to all such of the several interrogatories hereinafter mentioned and set forth,” &e. then follow the interrogatories, inquiring whether he did not hold a deed for the lot in question from one Joseph Feeman ; whether John Gurtner had anything to do with the purchase, and how he, Row, became a party to the deeds, and what agreement there was between him and Gurtner in regard to the lot ? How much purchase-money did he pay, and how much did Gurtner pay, and how did the latter come to take possession of the lot ? Whether the said defendant and Gurtner had any settlement involving the purchase-money of the lots, and if so, when made and its terms; and *122lastly, why he refused to convey the legal title to the heirs at law of John Gurtner, deceased, or whether he was willing to convey and on what terms ?
The hill charged that the deed had been made to Row as security for $100 of the purchase-money which he agreed to advance, and did advance, for Gurtner to Eeeman in payment of the lots, and that that sum with interest had been tendered to the defend ant before the filing of the bill.
The only prayer following the interrogatories is for process, commanding the defendant to appear before the court on a day certain, “ then and there full, true, direct and perfect answers to make, to all and singular the premises, and further to stand to, abide by, and perform such further order, direction and decree as to the court may seem meet, and that your orators may have such further relief as equity and good conscience may require.”
Undoubtedly this was a defective bill of discovery and nothing else; and the general prayer at the end of the bill for such other and further relief as equity and good conscience may require, must be regarded as referable only to the purposes of the bill, namely, to effectuate discovery. There is no prayer for a decree to convey on payment of the money, which it was alleged the deed was given to secure, or that the deed might be declared a mortgage. That being so, it seems’ to us the question determined by the dismissal of the .bill, was merely the question of discovery and not of title, and that the decree was conclusive of nothing involved in the ejectment. In fact there is nothing on the record to show what was heard, or that there was a hearing at all; the entry claimed to be a decree, being simply, u proceedings dismissed and plaintiffs directed to pay the costs.” It seems irreconcilable with all ideas of justice, to hold such an entry decisive of a title, without it appearing that that was the very question in controversy — and that that was what was determined by the words used. I do not mean to be understood as holding that in any case a decree dismissing a bill is not conclusive on the parties, in regard to the subject-matter of the bill; the contrary is the rule, but I do claim, that to be conclusive, the record must show the very matter claimed to have been passed upon, which is claimed to be concluded. That does not appear here. “.In order that a judgment in one action shall be conclusive in another, it must appear with convenient certainty, that the question in controversy in the second suit was litigated and decided in the first:" 2 Smith, Lead. Cas., 5th Am. ed. 668. This is most fully illustrated by the case of Kelsey v. Murphy, already cited. The bill in that case, like this, was dismissed, and this was claimed to be an adjudication of the very question involved in the second suit; but this court dissected the bill, and showed, that while it was a similar claim in one aspect of the case, it was not so in all, and not conclusive.
*123It is not an answer to these views, that it could not have been for discovery that the bill in question was filed, for there was no action pending in which the discovery might be used. That is not a reason why it might not have been erroneously filed, but it is a good reason why it ought to have been dismissed, and interpreting the entry by the records, it is most likely this was the reason why the “proceedings were dismissed,” and the plaintiffs ordered to pay the costs.
For these reasons we think the court erred in holding the record of the equity case conclusive of the question proposed to be raised by the offers of the defendant, and in rejecting the offer. Therefore, for the rejection of the offers constituting the 1st and 2d assignments of error, and for error in charging that the equity proceedings were conclusive, this judgment must be reversed. The defendants were entitled to show, if they could, what they proposed, and certainly if they succeeded in establishing that the deed to Row was simply as security for the sum of $100 advanced for Gurtner then it was a species of mortgage, subject to the doctrine that the defeasance might be shown by parol: Kenton v. Vandergrift, 6 Wright 339, and could only be used to enforce the payment of the money secured by it: Houser v. Lamont, 5 P. F. Smith 311.
Judgment reversed, and venire de novo accorded.
Sharswood, J., dissented.