Schwan v. Kelly

Citations

• 173 Pa. 65
• 33 A. 1107
• 1896 Pa. LEXIS 659

Syllabus

<p>Estoppel — Res judicata — Collateral attack upon judgment.</p> <p>The rule that what has been judicially determined shall not again be made the subject of controversy, extends to every question in the proceedings which was legally cognizable, and applies where a party has neglected the opportunity of trial, or has failed to present his cause or defense in whole or in part under the mistaken belief that the matter would remain open and could'be made the subject of another proceeding; but the conclusive effect of a judicial decision cannot be extended by argument or implication to matters not actually heard and determined, nor to collateral questions which arise but do not become part of the case.</p> <p>In order to render a judgment effectual as a bar it must appear that the cause of action is the same in substance and can be sustained by the same evidence; and as between courts of law and courts of equity the rule does not apply unless the jurisdiction of the former is broad enough to cover the whole ground, nor where questions falling within the exclusive province of equity are involved.</p> <p>Estoppel — Res judicata — Mortgage—Scire facias — Fraud—Equity.</p> <p>The vendees of land claiming the right to rescind the contract of sale on the ground of fraud, tendered a deed of reconveyance, and demanded the repayment of the part of the purchase money which they had paid. The right to rescind was denied by the vendors, who then caused a scire facias to issue on the mortgage which had been given them by the vendees for t.he unpaid balance of the purchase money. The vendees interposed no defense to the scire facias, and judgment was entered against them. Held, that the vendees were not estopped, by their failure to defend against the scire facias, to file a bill in equity to rescind the contract and to require the return of the purchase money.</p> <p>The verdict and judgment on the scire facias determined the amount due on the mortgage, but left untouched matters in