after stating the facts in the foregoing terms, delivered the opinion of the court.
1. The first question presented relates to the first cause of action. Grondahl gave testimony at the trial tending to show that he borrowed some money of the defendant, giving his note therefor, and that he paid it back to him, but failed to give the date of the repayment. It was sought to establish this date by the admission of the defendant. After submitting testimony to the effect that defendant was present in court at the trial of an action instituted by plaintiff against Grondahl for the recovery of the sum of money here sued for, and that Grondahl testified in that case, Mr. Cross was called, and permitted, over the objections of the defendant, to testify with reference to the date that Grondahl then fixed as the time when he paid the money back to the defendant; it being insisted that, as defendant did not then deny the statement of Grondahl, lie is bound by it, as a tacit admission by silence when he ought to have spoken. This was error, as the defendant could not be bound by his silence in court. He was *314not a party to that cause, and had no control or management of the case from the standpoint of either plaintiff or defendant; and it was not only not his duty to speak in refutation of what was then being given in evidence, but it was his duty, in deference to the court and the rules governing its proceedings when -in the progress of a trial, not to speak in interruption thereof.
2. It is next insisted by counsel for defendant that the decree in the divorce case operates as an estoppel in bar of plaintiff’s right of recover}7 upon the second cause of action, and that the court erred in not admitting the same for such purpose. It has become the settled rule of this court that a judgment or decree rendered upon a different claim or demand than the one being presently litigated can only operate as an estoppel against matters actually litigated or facts distinctly in issue: Glenn v. Savage, 14 Or. 567 (13 Pac. 442); Applegate v. Dowell, 15 Or. 513 (16 Pac. 651); White v. Ladd, 41 Or. 324 (93 Am. St. Rep. 732, 68 Pac. 739); La Follett v. Mitchell, 42 Or. 465 (95 Am. St. Rep. 780, 69 Pac. 916). The rule is stated thus in Caperton v. Schmidt, 26 Cal. 479 (85 Am. Dec. 187): “The matter adjudicated, to become, as a plea, a bar, or, as evidence, conclusive, must have been directly in issue, and not merely collaterally litigated. It must be a fact ‘ immediately found according to the pleadings, not that on which the verdict was merely based—a fact in issue, as distinct from a fact in controversy.’ ” Further expressions of the courts well indicate the extent as well as the limitations of the doctrine. “The rule is that the judgment of a court of competent jurisdiction is not only conclusive on all questions actually and formally litigated, but as to all questions within the issue, whether formally litigated or not”: Barrett v. Failing, 8 Or. 152, 156. Such is the language of the court in Bellinger v. Craigue, 31 Barb. 534, 537. “The conclusiveness of the judgment or decree ex *315tends beyond what may appear on its face—to every allegation which has been made on one side and denied on the other, and was in issue and determined in the course of the proceedings”: McCoy v. McCoy, 29 W. Va. 794 (2 S. E. 809). “A fact or matter at issue is that upon which the plaintiff proceeds by his action, and which the defendant controverts in his pleadings”: Garwood v. Garvood, 29 Cal. 514. This is the utterance, also, of the court in King v. Chase, 15 N. H. 9 (41 Am. Dec. 675). “ It may be stated generally that the ultimate facts upon which the recovery is had—facts which, if found the other way, the recovery must have been different—are facts in issue”: Marshall v. Shafter, 32 Cal. 176, 193.
In the case at bar, the fact upon which the question turns is as to the transfer or conveyance of the 45 acres of land, the alleged purchase price of which is sued for— whether such conveyance was in pursuance of a sale, as alleged in plaintiff’s complaint here, or of an agreement and settlement, as set up in her answer in the divorce suit, and found by the court. All her allegations there were denied, and the pleadings unquestionably formulated issues touching the existence of such an agreement and settlement, and the terms and conditions thereof. It may be appropriately inquired, were they material and pertinent to the controversy? There were involved the respective rights of the parties in the property designated in the alleged agreement, the custody and maintenance of the minor children, the institution of the suit for divorce, the payment of the costs thereof, and a provision for alimony to the wife. These are all incident to divorce proceedings. In a proper case, all of them, with the exception of the agreement that one spouse should procure a divorce from the other, and perhaps the disposition of the costs with reference thereto, might legally have been provided for in a postnuptial contract: Henderson v. Henderson, 37 *316Or. 141 (60 Pac. 597, 61 Pac. 136, 48 L. R. A. 766, 82 Am. St. Rep. 741); Ogilvie v. Ogilvie, 37 Or. 171 (61 Pac. 627). The court found the true agreement to be only in part as alleged, viz., that plaintiff (defendant here) was induced to endeavor to live with his wife for the sake of their children, and that thereupon she conveyed to the Title Guarantee & Trust Company the land in question—40 acres thereof in trust for her husband, to be used by him in maintaining and educating the children, and five acres in trust for him in fee; that he paid her a valuable consideration for the five acres, namely, a span of horses and a wagon; and that said conveyance was executed prior to October 4,1898. The decree dissolved the bonds of matrimony, and gave the plaintiff therein the custody of the children and one-third interest in the 35 acres of land owned by his wife, and his costs and disbursements. If the agreement and settlement had been as plaintiff herein alleged in her answer in the divorce suit, the court could not, and, we must assume, would not, have rendered a decree of divorce, as the contract was contrary to public policy; but the agreement as found is not subject to that objection, and the finding is such as to exclude every possible hypothesis of the sale of the tract of land herein by plaintiff to defendant for the consideration as she now alleges. The effect of the consummated agreement was to convey to defendant herein five acres of the land in fee, for a good and valuable consideration, and 40 acres to be held in trust for the care and maintenance of the children, whom the court has awarded to him—an agreement and settlement perfectly legitimate in every respect.
It is urged, however, with emphasis, that the decree rendered was not in pursuance of this particular finding, or that none was rendered upon it, and therefore that such decree cannot operate as an estoppel or bar to the present action. But was it ■ necessary that the decree *317should have been so affirmatively pronounced ? The deed was the consummation of the agreement and settlement. It was not necessary for the court to go further and validate the instrument, nor was it necessary to declare in the decree upon what consideration it was based, although it might have been done with propriety. It is very plain, however, that the agreement had an important bearing upon the decree that was actually rendered, and, had it not been for such an agreement and settlement as found, the decree certainly would have been materially different. For instance, the court might have required that the divorced wife make certain other provisions for the support of the children, or it might have treated the 45 acres as her property, and awarded the husband a one-third interest therein. The agreement and settlement, therefore, was a fact in issue, and one which influenced in an appreciable manner the nature of the decree given and rendered ; and, having been once solemnly determined, it constitutes an absolute bar to plaintiff’s cause of action against the defendant for the market value of the land in question. “ The' estoppel,” say the court in Burlen v. Shannon, 99 Mass. 200, 203 (96 Am. Dec. 733), “is not confined to the judgment, but extends to all facts involved in it as necessary steps, or the groundwork upon which it must have been founded. It is allowable to reason back from a judgment to the basis on which it stands, ‘upon the obvious principle that, wheré a conclusion is indisputable, and could have been drawn only from certain premises, the premises are equally indisputable with the conclusion.’ But such an inference must be inevitable, or it cannot be drawn.” The inference in the case at bar is one that follows naturally and irresistibly from the facts as they have been established. In further support of the principle, see Redden v. Metzger, 46 Kan. 285 (26 Pac. 689, 26 Am. St. Rep. 97); Woodin v. Clemons, 32 Iowa, 280; Bissell v. Kel*318logg, 60 Barb. 617 ; Last Chance Min. Co. v. Tyler Min. Co. 157 U. S. 683 (15 Sup. Ct. 733); Blackinton v. Blackinton, 113 Mass. 231; Town of Fulton v. Pomeroy, 111 Wis. 663 (87 N. W. 831).
Nor does the circumstance that only two of the children are named in the decree alter the case. Manifestly, there is a clerical error in the entry. But the consideration for the conveyance appears, and it is not the consideration now claimed for the recovery of which this action was instituted, so that the plaintiff is now precluded to claim otherwise.
Based upon these considerations, the judgment of the trial court will be reversed, and the cause remanded for such further proceedings as may be deemed appropriate.
Reversed.