Duren v. Kee

Citations

• 41 S.C. 171
• 19 S.E. 492
• 1894 S.C. LEXIS 104

Syllabus

<p>1. Issue as Submitted to Jury — Res Judicata. — In action for the recovery’ of a tract of land, the trial judge submitted to the jury the question of title to only so much of the tract as was'inclnded within the red lines on a plat in evidence, and after verdict, “We find for the defendant,” the trial judge certified on this plat that the portion so enclosed by red lines was the land covered by the verdict. Held, that this verdict was responsive only to the limited issue submitted to the jury, and that in a second action to recover damages for trespass on so much of the land named in the former complaint as was outside of these red linos, the plea of res judicata was not well taken.</p> <p>2. Ibid. — Case Followed. — -There was no error on the part of the trial judge in the first action in so limiting the issue submitted to the jury. Eason i>. Miller & Kelly, 15 S. 0., 202, followed.</p> <p>3. Recovery of Land — Second Action. — If this second action was for a part of the same land embraced in the fir3t action, it is not prohibited by the act of 1879 (17 Stat., 76), even though not brought for more than two years after the first judgment; for the act of 1879 was passed after the first action was instituted, and declares that nothing therein contained “shall prevent any person from being entitled to two actions for the recovery of realty after the passage of this act.”</p>