Opinion by
Mr. Justice Mitchell,The plaintiff gave in evidence the deed to Catharine Eiehert, her will of 1881 and the probate. Having thus made out a prima facie title in himself as trustee, he rested. Defendants then put in evidence the will of Catharine Eiehert of 1886, the deed by her to plaintiff in 1885, and the record of the proceedings upon the mortgage, showing the purchase of plaintiff’s title under the deed of 1885 by the defendants. From this statement of the case, stripped of superfluous and irrelevant matters, it is apparent that the turning point was the deed of 1885. If testatrix during her lifetime and while of sound mind, had conveyed the houses to plaintiff, then neither of her wills was material to the case, and this the learned judge told the jury, in terms of which plaintiff certainly had no right to com*522plain, for, disregarding all the complications of the probates and contest over the wills, the jury were instructed that plaintiff was entitled to recover, unless the deed by which the testatrix conveyed the houses to him was a good and valid deed. The jury found that it was and the plaintiff’s title under it having passed by the mortgage and sale to the defendants, the verdict was necessarily in their favor.
There was no element of estoppel in the case. It is true that the defendants had changed their ground and were now insisting that the testatrix was of sound mind in August, 1885, whereas in the will contest they had testified that she was non compos in February, 1886, and for several years before. But contradictory statements are not estoppels without other accompanying circumstances, and usually go to the jury merely on the credibility of the witnesses. No doubt they did so in. the present case, but with the effective tu quoque that the plaintiff himself had also changed his ground, and was blowing hot where he had previously blown cold.
The general principle insisted on by the appellant that a judgment settles the issue once for all between the parties is not questionable, but it has a recognized exception in the action of ejectment, which the appellant seems to have overlooked.
We find no error in the trial of the case.
Judgment affirmed.