The plaintiff in' this action seeks to establish by parol evidence a trust in certain real estate that had been deeded by his mother to his father, one of the defendants herein, by a deed absolute. It is claimed that this deed was made upon consideration that the property was to be held by the defendant, James W. McCord, during hi's lifetime, and to be by him willed to his children and grandchildren, in certain proportions.
One of the defenses interposed is that this action is barred by a former adjudication between the parties. This former suit between the parties is admitted, but it is claimed that it does not-amount to a bar to the prosecution of this action. In the
Among other averments, the petition contained the allegation that the mother died intestate and' seized in fee simple of the property. This was denied by the answer, and the court found, upon all the issues joined, in favor of the defendant. This was a finding in favor of the defendant upon the issue thus raised as to the title of the mother. Manifestly, if the mother was not the owner of the property and the real estate was in fact the property of the defendant, then the conveyance from the wife to her husband was -only transferring to him the property that belonged to him. The petition in the former case contained a prayer for all relief that the plaintiff might be entitled to in the premises, and in the journal entry in that case appears the following language: “It is therefore considered, adjudged and decreed that the petition of the plaintiff be and the same is hereby dismissed at the costs of the plaintiff, and that the plaintiff be, and the same is hereby denied any and all reli
The only evidence presented by the plaintiff in this case is certain admissions made by the defendant in a deposition taken in the former action and certain admissions made by him while testifying as a witness in the former action. There is, therefore, no evidence presented in this case that was not before the court at the former trial.
It is well settled in this state that where a party is called upon to make good his cause of action, or establish his defense, he must do so by all proper means within his control, and that all matters of action and defense coming properly within the scope of the suit or action will be put at rest by the final determination of the action or suit, unless excepted by some provision of law. Strangward v. The American Brass Bedstead Co., 82 Ohio St., 121; Petersine v. Thomas, 28 Ohio St., 596; The Covington & Cincinnati Bridge Co. v. Sargent, 27 Ohio St., 233; Roby v. Rainsberger, Id., 674; and Werner v. Cincinnati, 3 C. C., N. S., 276, affirmed, without opinion, 70 Ohio St., 455.
The cases just cited are to the effect that when a matter is finally determined in an action between the same parties, by a competent tribunal, it is to be considered at an end, not only as to what was determined, but also as to every other question which the parties might have litigated in the case. The title to this property was the subject of inquiry in the former action, and it was the duty of the plaintiff to set up in that case every claim he had that in any wise affected the defendant’s title, and if he failed to do so he could not thereafter
This conclusion makes it unnecessary for us to pass upon the other questions presented in argument.
The decree will be in favor of the defendant, dismissing the petition at plaintiff’s costs.
Petition dismissed.