In answer to the defence that the title to th demanded premises has been settled by a judgment in a former *24suit between these parties, it was competent, upon this record • of the proceedings in the former suit, for the demandant to introduce paroi evidence to satisfy the jury that there were two distinct grounds of defence relied upon, one of which involved only the question whether his grantor was seised, at the time of the making and delivery of the deed to him, and that this ground of defence was established by the proof, and that for this cause solely the judgment was rendered in favor of the tenants, and not by reason of any defect in the title of his grantor.
These facts being shown, the further fact that another distinct ground of defence was also taken, involving the question of notice of an unrecorded prior deed from Caleb Saunders to A. D. Holt, and in reference to which evidence was offered, does not make such former judgment a bar to the present action, if it shall appear that the question of notice was not passed upon, or that, if passed upon, it was found that such notice was given, and that the judgment for the tenants was rendered solely upon the ground that the grantor of the demandant was disseised when he executed the deed. In such case, the present demand-ant may introduce evidence of a newly acquired title by deed duly delivered since the commencement of the former suit, and then proceed to establish title in his grantor.
The effect to be given to a former judgment rendered in a case where there were two independent grounds of defence, and either of them, if established, would be fatal to the plaintiff, was considered, and the rule that we have applied to this case recognized, in McDowell v. Langdon, 3 Gray, 513.
We cannot suppose that any different rule was intended to be sanctioned by the case of Woodbury v. Sawyer, 7 Gray, 499. There is nothing contradictory to it in the opinion in that case, upon the exceptions taken at the first trial. The final disposition of it, briefly stated, must be assumed to have been intended to be in harmony with the opinion which had been previously announced, and which had recognized the cases of Dutton v Woodman, 9 Cush. 255, and McDowell v. Langdon, supra, as authorities.
Exceptions sustained.