ORMOND, J.
It is the settled law of this court, that the pos-sessory interest of a mortgagor, or of the maker of a deed of trust, may be sold under execution, and by a purchase at such sale, the purchaser acquires such an interest only as the defendant in execution has in the property. In this there is no difficulty, as no one claiming title to, or an interest in the property, would bo concluded thereby. But when a claim is improperly interposed, as by a mortgagee, when the law day has not arrived, many embarrassing questions arise — ‘for as the plaintiff in execution has an undoubted right to attack the validity of the deed, or impeach it for fraud, it becomes difficult, if not impossible, to determine, after a verdict in favor of the plaintiff in execution, whether the entire property, or only the possessory interest of the defendant in execution, was condemned by the jury.
To avoid this difficulty, this court intimated, in Perkins & Elliott v. Mayfield, [5 Porter, 193,] “that the issue should always conform to the nature of the interest sought to be subjected, if an equity of redemption, it should be so expressed — and if there is no qualification, it must be supposed to be the entire interest which is proceeded against.” This rule was found to be impracticable, and that there was no middle ground, but to proceed against the interest of the defendant in execution, whatever that was. Finally, in The Planters and Merchants Bank of Mobile v. Willis & Co. [5 Ala. 770,] it was held that the only proper issue was, that “the property levied on toas subject to the execution.” And in Williams & Battle v. Jones, [2 Ala. 319,] it was suggested that where the mortgagee or trustee could not interpose a claim in consequence of the right of the defendant in execution to the possession, that a court of chancery would interfere and ascertain the interest of the defendant in execution subject to sale.
[33]*33The executions of Shipman, Crane & Co. were levied on the mortgaged property, whilst the defendant in execution, by the terms of the deed, was entitled to the possession of the property, and whilst that state of things continued, the mortgagees interposed a claim under the statute. At the trial, the court very properly excluded the mortgage, and the property was condemned to the satisfaction of the executions.
Various other judgments being obtained against the mortgagor, executions issued thereon against him, and with those of Shipman, Crane & Co. were on the 11th April, 1841, and whilst the mortgagor was entitled to the possession of the mortgaged property, levied thereon. About the 21st June, 1841, the mortgagees having paid the debt for which they were sureties, and to secure which the mortgaged deed was made, they subsequently, on the 1st July, 1841, interposed a claim for trial of the right of property.
The cases of Shipman, Crane & Co. were dismissed in consequence of the previous trial, and judgment in their favor. The other cases were tried upon an issue, that the property levied on by the execution, was at the time of the levy, to wit, on the 11th April, 1841, liable to the satisfaction of the plaintiff’s execution. The jury under this issue found in favor of the plaintiff in execution, and condemned the slaves levied on to the payment of the debts, and the question to be determined is, whether the verdict and judgment is conclusive against the validity of the deed.
The general rule of the conclusiveness of judgments, is the one laid down by Chief Justice DeGrey, in the Duchess of Kingston’s ■ case. “That the judgment of a court of concurrent jurisdiction directly upon the point, is as a pica, a bar, or as evidence conclusive, between the same parties, upon the' same matter directly in question in another court.” This celebrated judgment has been ever since recognized in England and the U. States as a correct exposition of the rule. Some difficulty has, however, been found to exist, and some discrepancies will be discovered upon an examination of the numerous cases on this question as to the mode of ascertaining what was the point in issue between the parties, and whether proof aliunde for that purpose is admissible, or whether the point must not appear from the record. [See the numerous cases-on this head collected, and arranged by Cowen and Hill, 3 vol. Phil. Ev. 828, 848.]
[34]*34Necessarily, parol evidence musí be admitted to identify the subject matter of the suit. “Every fact which exists on record, must be proved by the record, but when the question is as to the real subject matter of the suit, or to show a bar to another suit, the identity of the cause of action may be proved by other than record evidence. [Parker v. Thompson, 3 Pick. See also Cist v. Zeigler, 16 S. & R. 282; Robinson v. Windham, 9 Porter, 397.]
A former judgment is a bar only in reference to the subject matter of the suit, and the points there put in issue and determined; where, therefore, it is proposed to show, by the record of a judgment, that' a certain matter was decided, it must appear from the record, that such matter w'as in issue, and then parol testimony may be admitted to show that the matter was in fact submitted to the jury. If the matter was not within the issue, such testimony is not admissible, as it would be, in effect, to contradict the record. [Manny v. Harris, 2 Johns. 24; Gardner v. Buckbee, 3 Cow. 120; Burt v. Sternburg, 4 Cow. 559; Wood v Jackson, 8 Wend. 9.] There are, however, numerous adjudications-by courts of the highest respectability, which hold a much more restricted doctrine, and assert that it must appear from the recoi’d itself, that the matter again sought to be brought in question, was directly in issue in the former suit, and that parol testimony in aid of the record, is inadmissible. [Sintzeninck v. Lucas, 1 Esp. 43; Church v. Leavenworth, 4 Day, 274; Smith v. Sherwood, 4 Conn. 276.]
Admitting, then, as it seems to be the more reasonable doc- ’ trine, and better adapted to the proper administration of justice, that parol evidence is admissible to prove that a particular matter was, in fact, submitted to the jury, and passed on by it — such matter being in issue — the question here is, what was put in issue by the pleadings, and therefore, proper to be passed upon by the jury? It was not that the property levied on was liable to the execution of the plaintiff, in which event, as has been previously shown, the .validity of the deed would have been directly put in issue; but it was, that, when the levy was made, the property was subject to the satisfaction of the execution. Now, it is most obvious, that the question here presented for the determination of the jury,-did not involve the validity of the mortgage. On the conti-ary, it admits, by implication, its binding force. Such being the state of the case, it was inadmissible to prove, by evidence [35]*35aliunde, that the validity óf the mortgage was passed on by the jury. It is very clearly proved, that the validity of the mortgage was contested before the jury; but who can undertake to say its invalidity was found by the jury. It was not necessary that they should pass upon it; and, therefore, non constat, that they did pass upon it. There would be no security whatever for private rights, if an estoppel could thus be created by parol testimony not warranted by the record.
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ORMOND, J.
It is the settled law of this court, that the pos-sessory interest of a mortgagor, or of the maker of a deed of trust, may be sold under execution, and by a purchase at such sale, the purchaser acquires such an interest only as the defendant in execution has in the property. In this there is no difficulty, as no one claiming title to, or an interest in the property, would bo concluded thereby. But when a claim is improperly interposed, as by a mortgagee, when the law day has not arrived, many embarrassing questions arise — ‘for as the plaintiff in execution has an undoubted right to attack the validity of the deed, or impeach it for fraud, it becomes difficult, if not impossible, to determine, after a verdict in favor of the plaintiff in execution, whether the entire property, or only the possessory interest of the defendant in execution, was condemned by the jury.
To avoid this difficulty, this court intimated, in Perkins & Elliott v. Mayfield, [5 Porter, 193,] “that the issue should always conform to the nature of the interest sought to be subjected, if an equity of redemption, it should be so expressed — and if there is no qualification, it must be supposed to be the entire interest which is proceeded against.” This rule was found to be impracticable, and that there was no middle ground, but to proceed against the interest of the defendant in execution, whatever that was. Finally, in The Planters and Merchants Bank of Mobile v. Willis & Co. [5 Ala. 770,] it was held that the only proper issue was, that “the property levied on toas subject to the execution.” And in Williams & Battle v. Jones, [2 Ala. 319,] it was suggested that where the mortgagee or trustee could not interpose a claim in consequence of the right of the defendant in execution to the possession, that a court of chancery would interfere and ascertain the interest of the defendant in execution subject to sale.
[33]*33The executions of Shipman, Crane & Co. were levied on the mortgaged property, whilst the defendant in execution, by the terms of the deed, was entitled to the possession of the property, and whilst that state of things continued, the mortgagees interposed a claim under the statute. At the trial, the court very properly excluded the mortgage, and the property was condemned to the satisfaction of the executions.
Various other judgments being obtained against the mortgagor, executions issued thereon against him, and with those of Shipman, Crane & Co. were on the 11th April, 1841, and whilst the mortgagor was entitled to the possession of the mortgaged property, levied thereon. About the 21st June, 1841, the mortgagees having paid the debt for which they were sureties, and to secure which the mortgaged deed was made, they subsequently, on the 1st July, 1841, interposed a claim for trial of the right of property.
The cases of Shipman, Crane & Co. were dismissed in consequence of the previous trial, and judgment in their favor. The other cases were tried upon an issue, that the property levied on by the execution, was at the time of the levy, to wit, on the 11th April, 1841, liable to the satisfaction of the plaintiff’s execution. The jury under this issue found in favor of the plaintiff in execution, and condemned the slaves levied on to the payment of the debts, and the question to be determined is, whether the verdict and judgment is conclusive against the validity of the deed.
The general rule of the conclusiveness of judgments, is the one laid down by Chief Justice DeGrey, in the Duchess of Kingston’s ■ case. “That the judgment of a court of concurrent jurisdiction directly upon the point, is as a pica, a bar, or as evidence conclusive, between the same parties, upon the' same matter directly in question in another court.” This celebrated judgment has been ever since recognized in England and the U. States as a correct exposition of the rule. Some difficulty has, however, been found to exist, and some discrepancies will be discovered upon an examination of the numerous cases on this question as to the mode of ascertaining what was the point in issue between the parties, and whether proof aliunde for that purpose is admissible, or whether the point must not appear from the record. [See the numerous cases-on this head collected, and arranged by Cowen and Hill, 3 vol. Phil. Ev. 828, 848.]
[34]*34Necessarily, parol evidence musí be admitted to identify the subject matter of the suit. “Every fact which exists on record, must be proved by the record, but when the question is as to the real subject matter of the suit, or to show a bar to another suit, the identity of the cause of action may be proved by other than record evidence. [Parker v. Thompson, 3 Pick. See also Cist v. Zeigler, 16 S. & R. 282; Robinson v. Windham, 9 Porter, 397.]
A former judgment is a bar only in reference to the subject matter of the suit, and the points there put in issue and determined; where, therefore, it is proposed to show, by the record of a judgment, that' a certain matter was decided, it must appear from the record, that such matter w'as in issue, and then parol testimony may be admitted to show that the matter was in fact submitted to the jury. If the matter was not within the issue, such testimony is not admissible, as it would be, in effect, to contradict the record. [Manny v. Harris, 2 Johns. 24; Gardner v. Buckbee, 3 Cow. 120; Burt v. Sternburg, 4 Cow. 559; Wood v Jackson, 8 Wend. 9.] There are, however, numerous adjudications-by courts of the highest respectability, which hold a much more restricted doctrine, and assert that it must appear from the recoi’d itself, that the matter again sought to be brought in question, was directly in issue in the former suit, and that parol testimony in aid of the record, is inadmissible. [Sintzeninck v. Lucas, 1 Esp. 43; Church v. Leavenworth, 4 Day, 274; Smith v. Sherwood, 4 Conn. 276.]
Admitting, then, as it seems to be the more reasonable doc- ’ trine, and better adapted to the proper administration of justice, that parol evidence is admissible to prove that a particular matter was, in fact, submitted to the jury, and passed on by it — such matter being in issue — the question here is, what was put in issue by the pleadings, and therefore, proper to be passed upon by the jury? It was not that the property levied on was liable to the execution of the plaintiff, in which event, as has been previously shown, the .validity of the deed would have been directly put in issue; but it was, that, when the levy was made, the property was subject to the satisfaction of the execution. Now, it is most obvious, that the question here presented for the determination of the jury,-did not involve the validity of the mortgage. On the conti-ary, it admits, by implication, its binding force. Such being the state of the case, it was inadmissible to prove, by evidence [35]*35aliunde, that the validity óf the mortgage was passed on by the jury. It is very clearly proved, that the validity of the mortgage was contested before the jury; but who can undertake to say its invalidity was found by the jury. It was not necessary that they should pass upon it; and, therefore, non constat, that they did pass upon it. There would be no security whatever for private rights, if an estoppel could thus be created by parol testimony not warranted by the record.
In this case, it appears that, when the levy was made, the defendant in execution had such an interest in the property as could have been seized and sold by the sheriff, but that this possessory interest had ceased to exist when the claim was interposed. From that time the possession, or, at least, the right to the possession, was vested in the mortgagees; and their demand of the sheriff put an end to his right to retain the slaves. [Magee v. Carpenter, 4 Ala. 475.] It results from this, necessarily, that the only proper issue to be tried was, the validity of the mortgage; and that the issue which was tried, was wholly immaterial, and did not warrant the court in rendering judgment upon it; but that it should have awarded a repleader. [Bennet v. Holbeck, 3 Saunders, 318, note 6.]
These views are decisive of the case. The defendants do not attempt to invalidate the mortgage for fraud, except so far as the complainants were supposed to be concluded on that point by the verdict of the jury; and it is but justice to the chancellor to add, that his opinion coincided with those here expressed; but he yielded his own opinion to the decision of this court in. the late case of the Planters’ and M. Bank v. Willis & Co. [5 Ala. Rep.] In so doing, he gave to that decision an effect not intended by this court. All that we meant to determine was, that, upon the proper issue, whether before or after the law day had arrived, a verdict by the jury against the claimant would be conclusive of his rights under the deed.
This court has undoubtedly the power to proceed and render a decree in this case; but as the court of chancery would have had the power, in its discretion, to permit an amendment of the answer, so as to raise the question of fraud in fact, we think it proper to remand the cause for further proceedings; but as both parties appear to be equally in fault, this is not considered a proper case for costs; each party will, therefore, pay his own costs in this court.