On Petition foe a Reheaeing.
Black, C.It is urged in support of a petition for a rehearing that we failed to decide what is claimed to be a question of estoppel. The evidence, to which our attention is thus again called, included a record, introduced by appellant, of an action in the Hamilton Circuit Court, brought in 1878, wherein Nathan Perrill, as administrator of the estate of George Nichols, deceased, was the plaintiff, and George Nichols, Jr., and William A. Nichols were the defendants. By the complaint, the plaintiff, as such administi’ator, for the purpose of making assets, sought to set aside certain deeds of conveyance of certain land in Hamilton county, being a deed executed in 1865 by said decedent and his wife to said George Nichols, Jr., and one Henry Nichols, a deed executed June 4th, 1867, by the same grantors to Henry Nichols for the same land, and a deed executed June 20th, 1867, by said Henry to said William for the same land. It was alleged, as ground *451for setting aside these deeds, that said decedent was of unsound, mind when he executed those so executed by him; that this fact was known at the time by the grantees in said deeds and by the defendants in said action; that all the conveyances were made without any consideration, and that said Henry and "William knew, when the two last mentioned deeds were executed, that there was no consideration for the same.
The defendant William alone answered by a general denial, and a trial of the issue thus formed resulted in a verdict for the plaintiff, and that the allegations of the complaint were true; and thereupon the court adjudged that said decedent was of unsound mind and incapable of managing his estate when said deeds were executed, and that they, were executed without any consideration; and said deeds were set aside and the plaintiff’s title was quieted.
On the trial of the case at bar, a witness for the appellant testified that the facts involved in this case were “ substantially gone over” in said former action.
The evidence in the former case is not before us, or any part of it.
Some of the appellee’s witnesses in the court below testified that in 1868 these witnesses heard the decedent and his wife say, at a time when the appellee was supporting the family, that they had no control over the farm; that it belonged to their son William; and that he was to maintain them as long as they lived, and that he was also to support two of their children, Martha and Milton, until they became of age; that William was to pay .them for the farm by maintaining them and said children. There was also much other testimony tending to show that the services of the appellee and his expenditures were understood by all parties to be not gratuitous. The deed of conveyance to the appellee set aside in said former action was a deed executed by said Henry.
In the case at bar, no portion of the appellee’s claim was shown to have constituted a consideration for that deed or for1 any deed. We do not know what was claimed in the former *452suit respecting any of the matters involved in this suit, either by the appellee or by the appellant.
To constitute an estoppel, it should appear that the particular controversy in this suit was tried and determined in the former suit. The verdict and judgment in the former suit did not necessarily involve the decision of what was necessary to be decided in the present suit; they did not establish that the claimant in this action did not render the services or make the- expenditures on which his claim was based, or that they were gratuitous.
If the same evidence that sustained the claim in this suit could not have established a consideration for the deeds or either of them in the former suit, it can not be said that an adjudication that there was'no consideration for said deeds was an adjudication of the matter involved in this claim. A court could not have found upon the evidence in support of appellee’s claim in this case that any of said deeds had for consideration the matters constituting the» appellee’s claim. And the appellant is as much estopped as the appellee to claim that any of said deeds had a consideration.
It is impossible for us to determine from the general verdict upon what portion of appellee’s claim the court found in his favor, or how the amount of the finding was calculated.
It is insisted that the appellant did not on his-part treat the services of Milton as constituting matter of set-off. There was some evidence introduced by the appellant tending to show that Milton’s services paid for his maintenance.
If, as is strongly contended, it was not the purpose of the appellant either by his pleading or by his evidence to treat the account as mutual, the court, upon the whole case, was authorized to so treat it; and we must presume, in support of the action of the court, that it did so treat it.
After again carefully examining the evidence, we think the appellee’s claim commends itself to a sense of justice.
Per Curiam. — The petition for a rehearing is overruled.