§ 1456. Identity of issues A judgment is conclusive only so far as it determines matters put in issue or admitted in the pleadings. 45 Extrinsic evidence is admissible to identify points decided on a former trial.46 45 New v. Smith, 119 P. 380, 86 Kan. 1. Doctrine of res adjudicata cannot be applied to judgments or decrees merely interpreting general statutes and obligations of citizens under them, except in so far as such judgments involve findings of fact to which such interpretation has been applied. Oklahoma Ry. Co. v. Severns Paving Co. (Okl.) 170 P. 216, 10 A. L. R. 157; Id., 170 P. 220. Judgment in suit to remove cloud of fraudulent deed is not res judicata as to damages on account of attorney's fees and expenses incurred in clearing title. Campbell v. Cubbon, 158 P. 1121, 98 Kan. 642. The decision of a former action, refusing an injunction against the paving of a strip of a railroad's right of way adjoining a street by a city of the second class, because no injury was shown, is not an adjudication of the validity of an assessment on the property of the railroad for the paving of such strip. Atchison, T. & S. F. Ry. Co. v. City of Cherryvale, 123 P. 874, 87 Kan. 57. A judgment in replevin is conclusive as against a right to maintain a subsequent action for malicious prosecution. Oklahoma Moline Plow Co. v. Smith (Okl.) 196 P. 962. An action was brought to restrain the collection of interest which accumu lated during the pendency of an injunction action prosecuted to restrain the collection of a personal property tax, on the ground that the statutes under which such interest was made collectible were unconstitutional and void. It appeared in the record of such action brought to the supreme court that the original injunction proceeding to restrain the collection of the tax, during the pendency of which this interest accrued, was based on the ground that the levy of such tax was unauthorized and invalid, and the tax not collectible, and that the defendants in such action joined issue on the validity of such tax, and final judgment was rendered therein sustaining the validity thereof. Held, that the question of the constitutionality of the laws under which the tax was levied and interest authorized was res judicata. Missouri, K. & T. Ry. Co. v. Board of Com'rs of Labette County, 64 P. 56, 62 Kan. 550. Where an action is brought to recover damages by a mortgagor against the mortgagee of chattels for having converted the property wrongfully, and for failure to account to the mortgagor for the proceeds thereof in excess of the amount required to satisfy the debt, and where it appears that the mortgagee obtained possession of the property by an order of replevin, and had the possession at the time of the trial and judgment in the replevin action, a finding of the value of the property is not res judicata upon the issue of value in the subsequent action for damages. Hawkins v. Overstreet, 54 P. 472, 7 Okl. 277. The decision of the probate judge that one who has petitioned as a settler is entitled to purchase school land is conclusive on those matters as to which the court is required to find, namely, the facts stated in the petition, and since the petition is not required to show a subdivision of the land by the 46 Bruner v. Bearden, 80 Okl. 154, 195 P. 117. § 1457. Matters not in issue A judgment is not conclusive between the parties as to facts which did not occur until after the judgment was rendered and which were not involved in the suit in which it was rendered.47 A judgment for the full amount of principal and interest contracted for in a usurious transaction is not res adjudicata as to an action brought afterwards to recover twice the usurious interest paid in satisfaction of such judgment.48 A judgment for the defendant on the question of the execution of a note is not res judicata as to the existence of the indebtedness.4o $1458. Issues undecided An adjudication upon the merits of a petition, which declines to pass upon a question raised, is a bar to another petition based upon the same ground raising the same question.50 A judgment against plaintiff in an action for rent where the issues were whether plaintiff owned the property and whether defendant occupied it as tenant does not estop plaintiff to assert the statutory tribunal having jurisdiction thereof, such decision of the court, when made in respect to tracts of less than 40 acres, does not determine that such subdivision has been duly authorized. Hooper v. Nation, 78 Kan. 198, 96 P. 77. 47 State v. City of Leavenworth, 90 P. 237, 75 Kan. 787. A judgment against a trust company and its directors for loss of a trust fund through negligence held not conclusive of the directors' negligence in a subsequent action against them by stockholders for appropriation of the company's assets in payment of such judgment, where it was rendered on a compromise without determination of the charge of negligence, and the directors were held liable because they held the assets of the trust company after it had ceased to do business. Chambers v. Land Credit Trust Co., 139 P. 1178, 92 Kan. 30, rehearing denied 142 P. 248, 92 Kan. 1032. That a party may have obtained a judgment against another does not estop him to subsequently ask for the same kind of relief against the same party if conditions have changed and new elements are brought in. A judgment in quo warranto in favor of the state ousting a city from the unauthorized exercise of corporate powers by its officers does not bar a subsequent action against the same city, brought many years afterwards, based on later abuses of power of the same character by the officers then in control of the city government. State v. City of Leavenworth, 90 P. 237, 75 Kan. 787. 48 Bean v. Rumrill (Okl.) 172 P. 452. 49 Bruner v. Bearden, SO Okl. 154, 195 P. 117. 50 Bellamy v. Washita Valley Telephone Co., 108 P. 3S9, 25 Okl. 792. An order confirming a sheriff's sale is not conclusive on the question of homestead rights in the realty, where that question, although raised, was ignored. Brury v. Smith, 53 P. 74, 8 Kan. App. 52. san.e title in ejectment against the same defendant, where it is not shown that the question of title was determined in the first action.1 A judgment which may have resulted from determination of either one of two or more separate issues does not constitute an adjudication as to either where it is not shown upon which it was based.52 Where a cause of action, because of improper joinder, is stricken from the pleadings, the party pleading same is not concluded as to the issues which might have been determined under such cause of action. 53 Where the entry of a judgment in an action involving several issues of fact recites a finding on one of such issues, compelling judgment for defendant, and is silent as to the rest, there is no presumption that they have been passed upon, and, in the absence of some further showing, they will be held open to inquiry in future litigation between the same parties based on a different cause of action.54 1459. Title or right to property Where a new or distinct title or interest in the land in controversy is acquired by one of the parties, pending an action of ejectment, and such title or interest is not asserted in the action, the judgment is conclusive against such title or interest.5 55 51 Routh v. Board of Com'rs of Finney County, 113 P. 397, 84 Kan. 25. 52 Routh v. Board of Com'rs of Finney County, 113 P. 397, 84 Kan. 25. 53 In ejectment, defendant claimed the rights of a mortgagee in possession and plaintiff showed that in a prior suit between the same parties defendant in the ejectment suit sought to foreclose the mortgage relied on to justify possession, but it appeared that, after setting it up as a cause of action, all reference thereto was stricken out of the pleadings by the court because of improper joinder of causes of action. Held, that the rights of the mortgagee were not actually determined, though the mortgage might have been foreclosed in the equity suit, and that the decree did not affect the rights of defendant, as a mortgagee in possession, in the subsequent ejectment suit. Stroup v. Pepper, 76 P. 825, 69 Kan. 241, reversing judgment 73 P. 896, on rehearing. 54 Hudson v. Remington Paper Co., 80 P. 568, 71 Kan. 300, 6 Ann. Cas. 103. 55 If, pending an action of ejectment, a new or distinct title or interest in the land is acquired by the defendant, either in equity or in law, if such title or interest is not asserted in the action before judgment, the judgment for plaintiff is conclusive against such title or interest, under the provisions of the Civil Code by which such an action settles the title between the parties in favor of the one recovering the judgment. Hentig v. Redden, 26 P. 701, 46 Kan. 231, 26 Am. St. Rep. 91, In an action against a mortgagor in possession and the mortgagee for the possession of real property, a judgment for the plaintiff is not an adjudication as to the right of the mortgagee to a lien on the land under his mortgage.56 A judgment rendered on personal service, affecting real estate or some interest therein, is binding and conclusive between the parties and their privies.57 The judgment in an action of partition, where the title and right to divide in severalty were in issue, is binding on all the parties to the proceeding, as to such issues. 58 A party to an action, resulting in a judgment for the sale of land, cannot in subsequent litigation impeach the validity of a sheriff's deed founded thereon, by showing that plaintiff had no authority to maintain such action.59 In replevin, the right of possession of the property is not res judicata unless that question is tried and passed upon with such certainty that the issue is removed from the domain of doubt and uncertainty, and has become distinct and certain.60 Where, in two actions of replevin, the parties, evidence, defense, and issues are the same, except that the title to different animals is involved, a judgment in the first case is conclusive as to the second.61 A decree of distribution made in winding up an estate is conclusive as to matters properly before the county court at the hearing but not as to the right to the possession of realty belonging to the estate, or the right of the surviving spouse to occupy the homestead.62 A Supreme Court decision in an action upon an administrator's bond to recover insurance money received by the administrator and 56 An action for the possession of real property was brought against a mortgagor in possession and a mortgagee. Judgment was rendered against the mortgagee by default, and against the mortgagor after a trial. Held, that said judgment was not an adjudication as to the right of the mortgagee to a lien on the land under his mortgage. Provident Loan Trust Co. v. Marks, 52 P. 449, 59 Kan. 230, 68 Am. St. Rep. 349. 57 Challiss v. City of Atchison, 25 P. 228, 45 Kan. 22. 58 Pennell v. Felch, 39 P. 1023, 55 Kan. 78. 50 Power v. Snow, 88 P. 1083, 75 Kan. 182. 60 Geiser Mfg. Co. v. Berry, 70 P. 202, 12 Okl. 183. 61 Hoisington v. Brakey, 3 P. 353, 31 Kan. 560. 62 Pennington v. Woodner-McGaugh, 54 Okl. 110, 153 P. 875. used as part of the estate, that the estate and not decedent's children were entitled to the insurance and that the administrator was liable for it to the children, is res judicata, in subsequent administration proceedings, that the insurance money belonged to the estate.63 § 1460. Rights under contracts Where the existence of a contract between cotenants of an oil and gas lease involved in instant action and its legality had been determined in a former action between same parties, such issues could not be relitigated. 64 Where, in a suit to quiet title, certain contracts were adjudged void, it was error, in ejectment brought by defendant in the former suit against the plaintiff therein, to admit evidence of the making of the contracts.65 § 1461. Real property In an action to quiet title, all matters affecting the title may be litigated, and the judgment is conclusive against the parties thereto.66 63 Hunt v. Remsberg, 133 P. 706, 90 Kan. 350. 66 Baker v. Leavitt, 54 Okl. 70, 153 P. 1099. A judgment regularly rendered in an action against a mortgagee and others to quiet title, that the defendants therein have no estate or interest in and to the premises, and that they be perpetually barred and enjoined from asserting any claim to them, or any part thereof, adverse to that of plaintiff, bars the lien of the mortgage. Hillyard v. Banchor, 118 P. 67, 85 Kan. 516. A person in the actual possession of land obtained a judgment quieting her title thereto, against nonresident defendants who had taken tax deeds, on a service by publication only, and without the appearance of defendants in court. Afterwards defendants sued the board of county commissioners to recover the amount of taxes paid, with interest, and on the trial introduced in evidence the record of the action against them quieting title. Held, that the court had jurisdiction to render the judgment quieting title; that it was admissible against the county to show that the tax deeds had been adjudged invalid; and that it could not be attacked collaterally, on the ground that the petition did not state a cause of action. Com'rs of Marion County v. Welch, 20 P. 483, 40 Kan. 767. Where land of a nonresident has been sold for taxes, and the title quieted in the purchaser on service by publication, the decree quieting the title divests the nonresident owner of all interest in the land, and he cannot sue to set aside a quitclaim deed which he is afterwards, by false representations, in |