329 Question. How near did you live to James Allen? Answer. I expect a couple a miles, may-be not so far. Question. Did he generally work in your neighbourhood, or the one over the hill? Answer. He works very little in our neighbourhood. Question. Did you ever hear any general report against his character for truth and veracity when under oath? Answer. Under oath, I can't say that I did. Question. How near did you live to Robert Allen, and did he generally work in your neighbourhood? Answer. He has never worked in our neighbourhood, as I know of, and lives, I should say, about four miles from our house to Hampton. Question. Who did you ever hear speak against the character of Joseph Hendrickson? Answer. Upon my word I can't name one now, because I do not recollect; but it seems to me I heard old Mr. Lomasson complain of him about some dealings they had. Question. Who did you ever hear speak against the character of James Allen ? Answer. Well, I don't know that I can name anybody justly. Question. Who did you hear speak against the character of Robert Allen ? Answer. Well, I have heard a good many of the neighbours, but the names I can't tell you; I forget, but I have certainly heard them. Question. How long is it since you gave up attending to business as formerly, and have you not of late years been pretty much at home? Answer. Well, upon my word I don't know that I am able to answer you that exactly; I suppose six or seven years ago. Well, I don't know but I have been from home as much since as I have before among my own people, backwards and forwards in the neighbourhood. Question, How many years ago is it since Berlin Metlar left this county, as near as you can tell? Answer. Well, upon my word I can't give you much information about that. It is not a great many years since he was about here. Sworn, &c., November 6, 1841. Ff2 1881, it appears a cross-complaint was filed by Hurd, by which the action was changed to ejectment; the other parties answered. The issues in ejectment were made up,this became the principal action, and the one which was afterwards tried. In it was involved the entire title to the premises. The case was tried March 25-27, 1885, resulting in a judgment for Hurd (plaintiff in error), finding him to have been the owner since March, 1876, and awarding him damages for detention, use and occupation, in the sum of $4,442.50, the case having been determined and the finding and judgment having been entered May 14, 1885. During such litigation Catherine and Erskine McClellan employed counsel to represent them, participated in the proceedings, and Catherine, as the agent of Job C. by virtue of powers of attorney from him, managed and directed the litigation, although having in her possession the conveyance from Job C., and having had it since about the date of its execution, April, 1879, such conveyance being only known to her grantor and herself. On the 22d of June, 1885, and after the entry of judgment in the action of ejectment in the county of Lake, she caused her deed to be recorded, assumed to be the owner, by virtue of the conveyance and by virtue of the original claims of title that were adjudicated against Job C. and herself in the action of ejectment, and also relying upon her long and continued possession of the premises and the statute of limitations. After such assumption of title, Catherine McClellan, after filing sundry affidavits to show her supposed status and relation to the property in controversy, appealed the case to the supreme court, herself paying the accumulated costs and expenses, amounting in the aggregate to over $3,000. Such appeal was dismissed for want of a proper abstract of the record and a remittitur issued to the district court. See Hurd v. McClellan, 13 Colo. 7. On the 20th of January, 1886, a writ of possession was is sued, served, and Hurd put in possession of the premises For some unexplained informality in the record the writ of possession was recalled, leaving Catherine in possession. It is alleged and undisputed that the informality in the record was cured, but no subsequent writ of possession issued, and Catherine was left in the possession. This appeal was taken from the order vacating and recalling the writ of possession, under the statute of 1885, allowing appeals from such order of court. The supposed title of Catherine McClellan, by reason of continued possession and the statute of limitations, can be very briefly disposed of. Possession to ripen into title must be open, notorious, continued, and adverse to all others. The facts show not a continuous possession of the claimant in her own right, but a broken possession. While the title remained with Erskine, and she was living with him as his wife, the possession is supposed to follow the title, and her possession cannot be presumed to have been adverse to her husband. After the conveyance from Erskine to Job C., and she became his agent, the possession was in Job C. and retained for him. by her, in her representative capacity, and although her possession may have, at all times, been adverse to Hurd, such possession could not become a title as against him for want of continuity in the same right. No appeal was prosecuted from the judgment in ejectment in the district court of Lake county. The judgment was not vacated, and a new trial granted, and it remains a conclusive and final judgment. "The only modes known to examine such facts at common law are the granting of a new trial by the court where the issue was tried, or to which the record was properly returnable, or the award of a venire facias de novo by appellate court for some error of law that intervened in the proceedings." Parsons v. Belford, 3 Pet. 443. The only further question we find it necessary to determine is, whether by reason of the facts and premises, and her participation, as above stated, Catherine McClellan is concluded by the judgment and estopped to assert her title. The due administration of the law and the interest of litigants require that there should be some end to litigation of this character. This litigation has now been running half the ordinary life of litigants, and nearly the entire useful professional life of the lawyers. It should not be allowed to be reopened, and the same issues again tried, unless in obedience to inexorable rules of law. The leading case upon estoppel by an adjudication is that of Outram v. Morewood, 3 East 346, where it is said by Lord Ellenborough, C. J., in effect, if a verdict be found on any fact or title distinctly put in issue in an action of trespass, such verdict may be pleaded by way of an estoppel in another action between the same parties and their privies in respect of the same fact or title. See Taylor v. Needham, 2 Taunt. 279; 1 Greenlf's Ev. 522 et seq.; Bigelow on Estop. 45, notes 2, 277; Miles v. Caldwell, 2 Wal. 26; Marsh v. Peet, 4 Rawle 288; Gardner v. Buckbee, 3 Cow. 120; Burt v. Sternburgh, 4 Cow. 559; Williams v. Hacker, 16 Colo. 113. The rule in these cases is, that a point once adjudicated by a court of competent jurisdiction may be relied upon as an estoppel in any subsequent suit, in the same or any other court, at law or chancery, where either party or the privies of either party allege anything inconsistent with it. Aurora City v. West, 7 Wal. 82; Beloit v. Morgan, 7 Wal. 619; Embury v. Connor, 3 N. Y. 522 and cases cited; White v. Coatsworth, 6 N. Y. 139; Smith v. Hemstreet, 54 N. Y. 644; 1 Phil. on Ev. 321. That judgments are admissible in evidence between persons who are in privity with the parties to the former proceedings, see Estep et al. v. Hutchinson, 14 Sergt. & Rawle, 435; Marsh v. Peet, 4 Rawle 273; Case v. Reeve, 14 John. 81: Carver v. Jackson, 4 Pet. 85; Spaulding v. Goodspeed, 39 Me. 564. In this case there was a final and conclusive adjudication, affecting directly the estate and binding the rights of the parties, and such adjudication was binding and obligatory upon all persons claiming under either party litigant. Adams v. Baines, 17 Mass. 365; Jackson v. Stone, 13 John. 447. Catherine McClellan was the grantee of the party against. whom the judgment was entered. She suppressed the knowl |