Bruce, J.
(after stating the facts as above). The first question to be determined is whether a judgment of dismissal “with prejudice [406] to the starting of another action on the cause of action set forth in the complaint,” which is rendered in an action of partition, and which action is based upon the theory that the defendant will stand by and recognize an oral agreement to settle a dispute by granting a joint interest in a tract of land, is a bar to a subsequent action after a repudiation of such oral agreement on the trial of the first action, and which subsequent action is based upon the original controversy which the oral agreement might, if recognized, have settled and disposed of, and which is in all intents and purposes an action to have a quitclaim deed declared to be a mortgage, to obtain a finding that such mortgage has been paid, and to quiet the title of the said land from the cloud thereof.
We are of the opinion that there was no legal bar to the present action, and that the dismissal of the former action was in no wise res judicata. The causes of action were not the same. To constitute an estoppel by judgment, the cause of action in the former and subsequent proceeding must be identical. Stitt v. Rat Portage Lumber Co. 101 Minn. 93, 111 N. W. 948. “The test of the identity of causes of action for the purpose of determining the question of res judicata is the identity of the facts essential to their maintenance.” Harrison v. Remington Paper Co. 3 L.R.A. (N.S.) 954, 72 C. C. A. 405, 140 Fed. 385, 5 Ann. Cas. 314; Wells-Stone Mercantile Co. v. Ultman, M. & Co. 9 N. D. 520, 84 N. W. 375; Linne v. Stout, 44 Minn. 110, 46 N. W. 319; Bigley v. Jones, 114 Pa. 510, 7 Atl. 54. “When it is not certain that the same question .was determined in favor of the party in another action who relies on the judgment therein as conclusive as to such question, the judgment is not final on the point.” Fahey v. Easterley Mach. Co. 3 N. D. 220, 44 Am. St. Rep. 554, 55 N. W. 580. Applying these tests, it is clear to us that no estoppel by judgment has been proved.
It is quite clear to us indeed that the Code of North Dakota, in providing specifically for an action of partition in §§ 7400-7452, Rev. Codes 1905, and for the action to determine adverse claims and quiet title in §§ 7519 — 7537, Rev. Codes 1905, recognizes the existence of the two distinct causes of action. The common-law conception and distinction is clearly stated in 21 Am. & Eng. Enc.. Law, 2d ed. p. 1147, and is as follows: “At common law, neither the title nor the right to [407] possession of land can be determined in an action for partition. It follows that tbe plaintiff in partition, in the absence of a statute authorizing the trial of questions of disputed title, must have a clear and undisputed title to an undivided share of the land of which partition is sought. If the applicant is not in the actual or constructive possession of the premises to he partitioned, and they are held adversely and his title is disputed, he cannot maintain the action.” Cave v. Holford, 3 Ves. Jr. 650; Holder v. Holder, 40 App. Div. 255, 59 N. Y. Supp. 207; Church’s Appeal (1888) 10 Sadler (Pa.) 230, 13 Atl. 756; Cecil v. Clark, 44 W. Va. 659, 30 S. E. 216; Deloney v. Walker, 9 Port. (Ala.) 497; Ross v. Cobb, 48 Ill. 111; Nash v. Simpson, 78 Me. 142, 3 Atl. 53; Hassam v. Day, 39 Miss. 392, 77 Am. Dec. 684; Therasson v. White, 52 How. Pr. 62; Wilkin v. Wilkin, 1 Johns, Ch. 111; Garrett v. White, 38 N. C. (3 Ired. Eq.) 131; Cannon v. Lomax, 29 S. C. 369, 1 L. R. A. 637, 13 Am. St. Rep. 739, 7 S. E. 529; Bruton v. Rutland, 3 Humph. 435; Groves v. Groves, 3 Sneed, 187; Straughan v. Wright, 4 Rand. (Va.) 493; Stuart v. Coalter, 4 Rand. (Va.) 74, 15 Am. Dec. 731; Bonham v. Weymouth, 39 Minn. 92, 38 N. W. 805.
It is not even necessary for us to determine whether the complaint in the action of partition should or could have been amended so as to put in issue the question of title, or whether that question was raised by the answer without any such amendment. All that it is necessary to say is that no such amendment was made or requested; that the complaint was clearly one in partition and in partition alone, and that the judgment merely “ordered, adjudged, and decreed that the cause is and the same is hereby dismissed, with prejudice to the starting of another action on the cause of action set forth in the complaint.”
The nature of the -judgment, in short, distinguishes the case at bar from the cases of Oliver v. Montgomery, 39 Iowa, 601; Telford v. Barney, 1 G. Greene, 575; Senter v. De Bernal, 38 Cal. 637; De Uprey v. De Uprey, 27 Cal. 333, 87 Am. Dec. 81; Hancock v. Lopez, 53 Cal. 362; McArthur v. Clark, 86 Minn. 165, 91 Am. St. Rep. 333, 90 N. W. 369; which otherwise might be authority for a holding contrary to that herein made. All that we desire to say here is that the complaint which we are here passing upon was specifically a complaint in partition, and that the prejudice of the judgment of dis[408] missal was in terms limited to the cause of action set forth in that complaint and to that cause of action alone.
It may also be true that accepting judgment in an action of partition, and having a share in the land set apart to one, may forever estop such a person from claiming a greater interest in the land (Davis v. Durgin, 64 N. H. 51; Telford v. Barney, 1 G. Greene, 575; Wright v. Marsh, 2 G. Greene, 94; Bigley v. Watson, 98 Tenn. 358, 38 L.R.A. 679, 39 S. W. 525); but no such showing has been made in the case before us. The judgment of dismissal of the partition suit was not, we believe, a bar to the present action. Bigley v. Jones, 114 Pa. 510, 7 Atl. 54.
The next and only remaining question to be determined is whether the payment of 'the sum of $100 which was made on the 30th day of June, 1910, and the signing’by the plaintiff and respondent on such day of the memorandum or receipt, “June 30th. Received of L. M. Due full settlement of contract made by L. M. Due for S. W. £ S. W. £ 22, N. £ N. W. £, S. E. £ N. W. £ 27-152-84, N. E. £ 9-155-97,” and the return to the said Coyle of his note for $250, and the cancelation of the mortgage on his piece of land near Minot, amounted to a relinquishment by the said Coyle of all of his right and interest in the said Rooney tract.
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Bruce, J.
(after stating the facts as above). The first question to be determined is whether a judgment of dismissal “with prejudice [406] to the starting of another action on the cause of action set forth in the complaint,” which is rendered in an action of partition, and which action is based upon the theory that the defendant will stand by and recognize an oral agreement to settle a dispute by granting a joint interest in a tract of land, is a bar to a subsequent action after a repudiation of such oral agreement on the trial of the first action, and which subsequent action is based upon the original controversy which the oral agreement might, if recognized, have settled and disposed of, and which is in all intents and purposes an action to have a quitclaim deed declared to be a mortgage, to obtain a finding that such mortgage has been paid, and to quiet the title of the said land from the cloud thereof.
We are of the opinion that there was no legal bar to the present action, and that the dismissal of the former action was in no wise res judicata. The causes of action were not the same. To constitute an estoppel by judgment, the cause of action in the former and subsequent proceeding must be identical. Stitt v. Rat Portage Lumber Co. 101 Minn. 93, 111 N. W. 948. “The test of the identity of causes of action for the purpose of determining the question of res judicata is the identity of the facts essential to their maintenance.” Harrison v. Remington Paper Co. 3 L.R.A. (N.S.) 954, 72 C. C. A. 405, 140 Fed. 385, 5 Ann. Cas. 314; Wells-Stone Mercantile Co. v. Ultman, M. & Co. 9 N. D. 520, 84 N. W. 375; Linne v. Stout, 44 Minn. 110, 46 N. W. 319; Bigley v. Jones, 114 Pa. 510, 7 Atl. 54. “When it is not certain that the same question .was determined in favor of the party in another action who relies on the judgment therein as conclusive as to such question, the judgment is not final on the point.” Fahey v. Easterley Mach. Co. 3 N. D. 220, 44 Am. St. Rep. 554, 55 N. W. 580. Applying these tests, it is clear to us that no estoppel by judgment has been proved.
It is quite clear to us indeed that the Code of North Dakota, in providing specifically for an action of partition in §§ 7400-7452, Rev. Codes 1905, and for the action to determine adverse claims and quiet title in §§ 7519 — 7537, Rev. Codes 1905, recognizes the existence of the two distinct causes of action. The common-law conception and distinction is clearly stated in 21 Am. & Eng. Enc.. Law, 2d ed. p. 1147, and is as follows: “At common law, neither the title nor the right to [407] possession of land can be determined in an action for partition. It follows that tbe plaintiff in partition, in the absence of a statute authorizing the trial of questions of disputed title, must have a clear and undisputed title to an undivided share of the land of which partition is sought. If the applicant is not in the actual or constructive possession of the premises to he partitioned, and they are held adversely and his title is disputed, he cannot maintain the action.” Cave v. Holford, 3 Ves. Jr. 650; Holder v. Holder, 40 App. Div. 255, 59 N. Y. Supp. 207; Church’s Appeal (1888) 10 Sadler (Pa.) 230, 13 Atl. 756; Cecil v. Clark, 44 W. Va. 659, 30 S. E. 216; Deloney v. Walker, 9 Port. (Ala.) 497; Ross v. Cobb, 48 Ill. 111; Nash v. Simpson, 78 Me. 142, 3 Atl. 53; Hassam v. Day, 39 Miss. 392, 77 Am. Dec. 684; Therasson v. White, 52 How. Pr. 62; Wilkin v. Wilkin, 1 Johns, Ch. 111; Garrett v. White, 38 N. C. (3 Ired. Eq.) 131; Cannon v. Lomax, 29 S. C. 369, 1 L. R. A. 637, 13 Am. St. Rep. 739, 7 S. E. 529; Bruton v. Rutland, 3 Humph. 435; Groves v. Groves, 3 Sneed, 187; Straughan v. Wright, 4 Rand. (Va.) 493; Stuart v. Coalter, 4 Rand. (Va.) 74, 15 Am. Dec. 731; Bonham v. Weymouth, 39 Minn. 92, 38 N. W. 805.
It is not even necessary for us to determine whether the complaint in the action of partition should or could have been amended so as to put in issue the question of title, or whether that question was raised by the answer without any such amendment. All that it is necessary to say is that no such amendment was made or requested; that the complaint was clearly one in partition and in partition alone, and that the judgment merely “ordered, adjudged, and decreed that the cause is and the same is hereby dismissed, with prejudice to the starting of another action on the cause of action set forth in the complaint.”
The nature of the -judgment, in short, distinguishes the case at bar from the cases of Oliver v. Montgomery, 39 Iowa, 601; Telford v. Barney, 1 G. Greene, 575; Senter v. De Bernal, 38 Cal. 637; De Uprey v. De Uprey, 27 Cal. 333, 87 Am. Dec. 81; Hancock v. Lopez, 53 Cal. 362; McArthur v. Clark, 86 Minn. 165, 91 Am. St. Rep. 333, 90 N. W. 369; which otherwise might be authority for a holding contrary to that herein made. All that we desire to say here is that the complaint which we are here passing upon was specifically a complaint in partition, and that the prejudice of the judgment of dis[408] missal was in terms limited to the cause of action set forth in that complaint and to that cause of action alone.
It may also be true that accepting judgment in an action of partition, and having a share in the land set apart to one, may forever estop such a person from claiming a greater interest in the land (Davis v. Durgin, 64 N. H. 51; Telford v. Barney, 1 G. Greene, 575; Wright v. Marsh, 2 G. Greene, 94; Bigley v. Watson, 98 Tenn. 358, 38 L.R.A. 679, 39 S. W. 525); but no such showing has been made in the case before us. The judgment of dismissal of the partition suit was not, we believe, a bar to the present action. Bigley v. Jones, 114 Pa. 510, 7 Atl. 54.
The next and only remaining question to be determined is whether the payment of 'the sum of $100 which was made on the 30th day of June, 1910, and the signing’by the plaintiff and respondent on such day of the memorandum or receipt, “June 30th. Received of L. M. Due full settlement of contract made by L. M. Due for S. W. £ S. W. £ 22, N. £ N. W. £, S. E. £ N. W. £ 27-152-84, N. E. £ 9-155-97,” and the return to the said Coyle of his note for $250, and the cancelation of the mortgage on his piece of land near Minot, amounted to a relinquishment by the said Coyle of all of his right and interest in the said Rooney tract.
On the latter point the trial court found the issues for the plaintiff and appellant, and we do not feel justified in overruling his conclusions. The question is one of credibility merely. We realize that counsel for appellant are strenuous in their assertion of the falsity of the testimony of the respondent, and explain any and all weakness or vacillation in the testimony of the appellant by asserting that “the result of the entire cross-examination . . ; warrants us in the presumption that such manner of cross-examining this witness was not pursued because opposing counsel lacked confidence in Due’s integrity, but rather because counsel lacked confidence in the integrity of his cause, and sought, by this forceful manner, to cover up some of its innate weakness, as Lord Bacon said of Piso, that when Piso attempted to answer Cicero, the more to give pretext by sheer force of grimace to strength of argument and fecundity of thought, Piso did fetch one eyebrow to the top of his forehead and did bend the other down to his chin.” We cannot, however, see anything unfair in the cross-examina[409] tion hut are of the opinion that much of its severity, if severity there was, was due to the natural desire to obtain answers which should be direct and responsive to the questions which were asked. The quotation from Lord Bacon, indeed, is suggestive of the main difficulty which confronts this court in all trials de novo under the so-called Newman act. The grimaces of counsel and the contortions of their eyelids do not appear upon the printed record, nor do we have any means, of judging of the veracity of witnesses by examining their demeanor upon the witness stand. The trial judge alone has the opportunity to-observe these things, and where, as in the case at bar, the judgment is sustained by clear and probable evidence, and it is a question merely of believing one man or the other, we must perforce yield to the judgment of the presiding judge, who alone is competent in the matter. If, indeed, it were not for the receipt mentioned, there would be no-question of the right of the respondent to recover in this action, for that the transaction was and still is a mortgage transaction is admitted by the appellant himself. He testifies in- effect as follows: “I was-holding the Eooney land and the land south of the town as security for the repayment of Coyle’s indebtedness . . . and I traded the property that I held as security for the repayment of moneys due me,, the property that I got in that trade also stood as security for the repayment of moneys Coyle owed me. ... I testified this morning that the Eooney land was security for the repayment of Mr. Coyle’s indebtedness to me. I was agent for Mr. Coyle. . . . By the quitclaim deed Mr. Coyle left with me when he went home, that deed was only left there to assist me in making the trade so I could get my money on it and pay Mr. Coyle the money upon it.” Q. “Well, now, we are at the point where you traded for the three lots in Eastwood Park that you described, and you still have the lots as security for the repayment of the indebtedness, is that á fact?” Ans. “Yes, sir. Mr. Coyle never gave me a quitclaim deed on the lots. I felt that I was trustee for Mr. Coyle of that property, and held it until the amount paid me was paid.” Q. “And that relation still continues, does it ?” Ans. “I don’t know. I still want the money I put in this property. After that I am satisfied to turn it back to Mr. Coyle. He has still got the money.” Q. “So that you only hold this property for [410] the repayment of moneys you got in it?” Ans. "Well, yes as well as to get my money back.”
Nor do we think that the receipt was in any way conclusive. We, of course, are aware of § 7316 of the Code, which provides that “the following presumptions, and no others, are deemed conclusive: . . . 2. The truth of the facts from a recital in a written instrument between the parties thereto, or their successors in interest by a subsequent title; but this rule does not apply to a recital of a consideration.” The section of the statute, however, is not applicable to the receipt in question. There is in it no recital of facts. It simply states that something has been received in full settlement, but does not state what that full settlement is. Coyle insists that the full settlement was the return of his papers on- the Ward county land and the recognition of the half interest in the lots. Due, on the other hand, claims that the receipt by him of the $100 and the giving up of the note for $250 constituted the settlement. It is quite clear that in the receipt itself there is no recital of facts which is conclusive upon anyone.
The judgment of the District Court is in all things affirmed. The appellant will pay the costs and disbursements of this appeal.
Goss, J., being disqualified, did not participate.