Both parties moved for a, rehearing.
The motion was granted June 2, 1899, and the cause was reargued September 11, 12, 1899.
For the appellants there were briefs by Hooper & Hooper, and oral argument by Moses Hooper and E. C. Eastman.
H. O. Fairchild, of counsel, for the respondent.
The following opinion was filed October 20,-1899:
WiNslow, J.Motions for rehearing were made in the present case by both parties, and upon consideration a rehearing was ordered upon the single question of the effect of the judgment in the case of Fletcher v. Coleman. It was, in effect, assumed in the former opinion that it appeared in the case of Fletcher v. Coleman that Coleman held or claimed to hold tax certificates upon the lands included in the first and second causes of action in this case, and hence that it appeared affirmatively from the record that the judgment in that case necessarily decided, as between Fletcher and Coleman, that Coleman’s certificates thereon were void, because the lands were exempt from taxation in the year 1875. In justice to ourselves, it ought to be said that this assumption was entirely justified by the original briefs furnished us and the oral arguments made upon the first hearing. Upon the respondent’s motion for rehearing, however, it *223was urged (as the fact is) that two classes of lands were involved in the prior action, which were described in two exhibits attached to the complaint: Exhibit A covering lands-earned in 1867, upon which Eletcher already held patents (which include the lands now under consideration); and Exhibit 33 covering lands which had not yet been patented, but which were alleged to have been earned in 1868, and of which the state was alleged to hold title in trust for •Eletcher, and which are not involved in the present litigation. In connection with this fact, our attention was called to the further fact that the complaint in the prior action did not specifically charge that Coleman possessed any certificates upon the lands now involved, or upon cmy definite parcels of land, but simply charged that there had been tax sales of all' the lands of both classes, and certificates issued thereon, “ which certificates now belong to said county, or to some of the defendants, and some of which certificates belong to each of the defendants in this action; but which of such certificates belong to said county and which to the other defendants this plaintiff cannot state.” No evidence having been preserved in the record of that case, and the finding being simply a general one to the effect that all the allegations of the complaint were true, and that the lands described in two certain patents, executed by the state to Eletcher were exempt from taxation, the argument of the respondent was that it does not appear that the question whether the lands described in the first and second causes of action in the present action were exempt was ever in fact litigated or decided as between Eletcher and Coleman. It was admitted by respondent that the lands in question here were included in the first patent named in that judgment, and were the lands described in Exhibit A in that case; but, it appearing by the findings that the second patent was issued after the commencement of that action, and covered lands patented in. lieu of the lands alleged to have been *224earned in 1868, and described in Exhibit B, tbe argument was also made that, the patents not being before the court, the judgment did not in fact adjudicate as to the lands described in Exhibit B at all, and that the certificates held by Coleman might well have covered only lands named in Exhibit B, as to which lands there never had been any judgment of exemption. The considerations thus urged seemed so important, and their bearing upon the case so obvious, that it was deemed best to order a reargument of the question as to the conclusiveness of the prior judgment, in order that the questions now suggested might receive full argument and consideration. Such reargument has now been had, and, as a result, it seems necessary to reverse our former judgment.
The general principles governing the efficacy of judgments between parties and their privies were well stated in the former opinion, and we do not find it necessary to rediscuss or criticise them. Those principles are there stated as follows: “In a second litigation between the same parties or privies upon the same cause of action the judgment is absolutely final as to their rights in that cause of action as to all things, not only those which were in fact litigated and decided by the court, but also those which might have been so litigated and decided. On the other hand, in a subsequent litigation between the same parties or their privies upon a different cause of action the judgment is only conclusive as to those issues which were in fact adjudicated. ... To ascertain what those issues were, we may examine the proceedings, or extrinsic evidence may be considered.” In discussing the question of privity, however, the following language was used: “ The conclusive effect of a judgment is against the parties thereto personally whenever the matter adjudicated again becomes material between them, and'that personal effect attaches itself to cmy property or rights of such individuals when brought into litigation, and follows such » *225jproperty or rights into the hands of a grantee or transferee thereof.” We are all agreed, that so much of the above paragraph as states that the effect of a personal estoppel follows any property or rights into the hands of a grantee or transferee of such property is incorrect, and must be withdrawn. It is only when the particular' property or right which has been transferred is affirmatively shown to have been the subject matter of the former litigation, and its status settled thereby, that the effect of that litigation is conclusive upon a grantee or transferee of property. A mere personal es-toppel does not travel with all property which the person estopped may afterwards transfer, but only with the property shown to have been in litigation, and afterwards transferred. Hart v. Moulton, post, p. 349. In the case just cited it is said: “The mere personal effect of the judgment is absolutely confined to the parties to the litigation. It does not attach to or become a rule of property as to any other thing than the particular subject of the controversy which was closed by the judgment.” Granting, for the purpose of the argument, that the plaintiff here is in privity with .Coleman, it seems very apparent, under the foregoing rules, that the evidence does not go far enough to show that the judgment in the case of Fletcher v. Coleman concludes the plaintiff, or in any way affects his title to the lands included in the first and second causes of action here. The present cause of action being an entirely different one from that involved in Fletcher v. Coleman, the judgment is only conclusive as to those issues which affirmatively appear to have been in fact adjudicated in that case. It nowhere appears, either by the record of that case or by extrinsic evidence, that it was there decided (as between Eletcher and Coleman) that the lands here involved were exempt from taxation, because it does not appear that Coleman then had, or claimed to have, any tax certificates upon these lands. His certificates, if he held any, may just as well have been upon *226the lands described in Exhibit B, which are not involved in this action, and which, appear to have never been adjudicated on at all. Perhaps, as to Coleman himself, the question was decided that the lands in Exhibit A were exempt from taxation, so that he would be personally estopped from 'contending to the contrary in subsequent litigation with Eletcher; but it does not appear that either the land in controversy here or any tax certificates on that land were the subject of controversy between Eletcher and Coleman in that case, and hence that judgment did not attach to any land so as to conclude one who subsequently purchased from Coleman. This consideration makes the estoppel raised by the former adjudication, if any there was, a mere personal estoppel as to Coleman, and one which is not attached to-any property; and hence, when Coleman afterwards conveyed the Webster title to the plaintiff, it passed unaffected by the prior judgment. This conclusion is decisive of this branch of the case, because the parties in the present case.by stipulation (now for the first time called specifically to our attention) have stipulated that, “ if the plaintiff’s title to the lands described in the first and second causes of action is found to be valid, he is entitled to recover for damages under gaid first and second causes of 'action the sum of ten thousand dollars.” The parties having chosen to rest the right of recovery upon the question of title to the land on which the trespass was committed, we are relieved from considering the question whether Coleman, if personally estopped, could, by assignment, transfer a cause of action for trespass thereon which could be recovered upon in the hands of his assignee.
Another position was taken by the plaintiff, and argued, namely, that, even conceding that the judgment in the prior action estopped Coleman and his grantees, who claimed under a title founded on the certificates attacked in that action, still such estoppel could have no effect upon the Web*227ster title, which simply passed through Coleman to the plaintiff, and which is conceded to have been a good title, and one which is founded upon certificates of a subsequent year. .In the view we have taken of the case, we have found it unnecessary to discuss this question.
By the Oourt.— Judgment affirmed.
Cassoday, 0. J., took no part.