The opinion of the court was delivered by
Bedpield, Ch. J.In this case the plaintiffs make title to the lands, in question, being lot No. 4, in Bange 9, in Victory, under Samuel A. Chandler. The trespass complained of is cutting thirty-two pine trees, on said lot. These trees were cut by one Houston, who was a party to this suit, at the two first trials, in the county court, and by him sold to the other defendants, which is the mode, in which a cause of action is made out against them.
At the two former trials in the county court, the plaintiffs failed to show title to the lot, on which these trees were cut, in Chandler, and consequently, in themselves, and thus failed to recover, for the cutting of these trees, against any of the defendants. At the last trial they did recover, against the present defendants, for other timber, a verdict passing in favor of Houston, on the ground stated above. Houston became separated from the other defendants, his case; being a final verdict, was carried to the Supreme Court, and was there affirmed. The other defendants reviewed, and, at the trial, gave notice of the final judgment, in favor of Houston, as their defense, so far as the cutting of the thirty-two trees is concerned, they having purchased of Houston, and his title being quieted by the final judgment in his favor, as the defendants now claim. The plaintiffs having in the last trial, in the county court, failed to recover of these defendants, except for the same thirty-two trees, cut by Houston, they now claim that the plaintiff cannot recover of them, for the same trees.
And in this, it seems to us, the defendants are well founded, in law. This defense is not altogether of the nature of a strict estoppel. It is rather of the nature of a former recovery, for the same cause of action. For a failure to recover is as conclusive a *605bar as a recovery and payment of the judgment, so far as the party to that judgment is concerned. As to Mm, tbe judgment is conclusive, it being shown on all the trials, that he cut the trees, and the plaintiffs failing to show title in themselves, the judgment conclusively establishes the right to hold the trees, against the plaintiffs. And this bar must extend to all who stand in privity of estate with Houston. And privies in estate include all who derive title under the party. This is familiar law, and the necessity of such a rule is forcibly illustrated, in the present case. For if the plaintiffs could here recover of these defendants, and they of Houston, of which there can be no doubt, the plaintiffs would effect circuitously, a reversal of the judgment against them, in Houston’s favor. This would be at variance with the well settled principles, upon this subject. It was never regarded as of any importance, that the estoppel, or bar, should exist, before the commencement of the action, if properly pleaded, of which no question seems to be made, or probably could be here. The result is that the judgment must be reversed on this ground.
We have taken no pains to examine the other ground. The contract with Chandler, who owned the land, being in writing, it might probably be so far conveyed, by merely verbal contract, as to give the plaintiffs the rights conveyed, by Chandler. Whether the writing of Chandler was intended to convey any present interest is very questionable.
In terms Chandler agrees to sell, and the other party agrees to purchase, thus making it strictly executory. And as it looks to a future performance, and the continuing rights of the second party depend, upon continuing performance on their part, it would see m more consistent, with the usual construction of such contracts, to hold that either party might refuse to go forward with the contract and thus drive the other party, to Ms claim for damages, and that no title vested in the timber, until, or as fast as it was cut.
Judgment reversed, and case remanded.
Note. — The character and effect of the contract with Chandler and the precise title, or right, acquired by it, is undoubtedly altogether a question of Jaw, in regard to which the jury have no discretion.