Napton, J. —
This was an action of ejectment, tried in the Cape Girardeau court of common pleas, to which court it was taken from Scott county. The petition averred an unlawful entry of defendant on the 5th day of January, 1874, on the northwest quarter of section 30, township 30, range 14 east, and was filed August 1st, 1874.
In addition to general denials, the answer set up as a [55]*55defense that on the 28th day of September, 1850, the land Claimed in the petition was donated by the United States to the State of Missouri, as swamp land, and was subsequently by an act of the Legislature passed the 23rd day of February, 1853, donated by the State to Capo Girardeau county; that Claude Benna, the ancestor of defendants, was, on the 1st day of January, 1855, the head of a family, and on that day was living with his family on said land, and had cleared and put in cultivation a part of it, and built a house on it; that this land, at that date, was in Cape Girardeau county; that on the 21st day of April, 1858, said Benna filed his pre-emption claim with the clerk of the county court of Cape Girardeau county, claiming the right to purchase said land by virtue of his occupation, cultivation and improvements on the same; that afterwards said Benna tendered to the county treasurer $160 in full payment, &c.; that said Claude Benna has departed this, life, leaving children Saturna Benna and others, defendants in this action.
An additional defense was set up in the answer that in the month of January, 1855, and for a long time prior thereto, said Claude Benna, their ancestor, held and occupied said real estate under the laws of the State, and in the year 1858 said Claude Benna pre-empted said real estate from the county of Cape Girardeau, the said county being then the owner of said land; that said county of Scott pretending to own some interest in said real estate, in the year 1864, pretended to sell the same to one Alexander "Waugh, and that said plaintiffs now claim under and from said Alexander "Waugh; that after said pretended purchase said Waugh instituted an action of trespass in the circuit court of Cape Girardeau county, against said Claude Benna for an alleged trespass upon said real estate, and that said action came on to be tried in said court, and the title of said "Waugh and Benna was fully litigated, and that in said action judgment was rendered in favor of said Henna, and they plead said adjudication as an estoppel to [56]*56the suit of plaintiffs. A further plea is, that said Claude Benna, and, since his death, said defendants have held adverse possession of said premises for ten years before the commencement of this suit.
The replication, in addition to a general denial of every allegation of defendant’s answer, s£ts up that at the May term of the Mississippi circuit court, 1869, an action of ejectment on change of venue from Scott county was pending in that court; that in this action Ilenry Vollmers was plaintiff and Claude Benna, Joseph Benna and Eugene Benna were defendants; that in said action the same identical matters were in issue that these defendants now set up; that the verdict was for plaintiff, being that the said Vollmers was the owner and entitled to the possession of the real estate described in the present petition; that after-wards a judgment was rendered in accordance with said verdict, that the said Vollmers recover the possession of said real estate; that said action was taken by writ of error to the February term of the second district court, and was affirmed, and is still in full force, and said Vollmers, thereafter, obtained possession and retained the same until he sold and delivered said realty to the present plaintiffs, and that afterwards the defendants herein, against consent of plaintiffs herein, wrongfully and unlawfully entered.
On the trial the plaintiffs read in evidence a patent from Scott county to Alexander Waugh dated October 27th, 1864, for the land in controversy, and a quit-claim deed from Alexander Waugh to Henry Vollmers for said land dated November 21st, 1859, and a deed from Vollmers and wife to George G. Kimmel, dated May 14th, 1870, recorded Juno 10th, 1872, anda deed from George Kimmel and wife for an undivided half of said land to E. A. Kimmel, dated January 31st, 1871; also the opinion of the second district court affirming the judgment of the circuit court of Mississippi county in the case of Vollmers v. Benna et al. On the part of plaintiffs, it was established by parol evidence, that under the execution on the judgment in [57]*57favor of Vollmers, the sheriff of Scott county put Voll-mers in possession of this land and turned out theBennas, and that Vollmer’s tenants occupied the land in 1874, and Kimmel bought of Vollmers in that year, and Ms tom ants occupied the land for three years afterwards $ that on the trial of the case of Vollmers v. Benna in the Mississippi circuit court there was evidence in regard to the boundary lino between Scott and Cape Girardeau counties, which was the main channel of the Big Swamp, and the title papero of both parties were investigated. Benna’s claim to a preemption from Cape Girardeau county was in proof. A surveyor testified that the land was, at the trial of the present case, in Scott county.
The defendants gave-in evidence, objection being made by plaintiffs and overruled, a deed dated 9th day of October, 1865, from the sheriff of Scott county for the land in controversy, to Claude Benna. This deed was made in pursuance of a judgment rendered the 13th day of December, 1860, against Alexander Waugh, and an execution thereon in 1865, and a levy in September of 1865 and a sale to Benna. They also read in evidence the order of the Cape Girardeau county court directing the county surveyor to survey the south boundary of the county, and the report of the surveyor dctailingtlic difficulties of finding the main channel of the Big Swamp. This was objected to as irrelevant, and for the reason that the matter was adjudicated between II. Vollmers, grantor of plaintiff, and Claude Benna, the ancestor of defendants. It appeared from oral testimony that the deed from the sheriff of Scott county to Claude Benna, conveying the title of Waugh in 1865, was not offered in evidence in the case of Vollmers v. Benna. The plaintiffs renewed their objections to the introduction of any evidence tending to prove a title by pre-emption or under the statute of limitations, or tending to prove that the land in dispute was or was not over in Cape Girardeau county, or tending to prove any pre-emption right in [58]*58Claude Benna. These objections were overruled by the court and the plaintiffs took exceptions.
The parol evidence of defendants showed that Benna, tho father of defendants, had lived on this land since 1854; that the land was north of the main channel of the Big Swamp, and eonsequently in Cape Girardeau county until an act of the Legislature was passed (Sess. Acts 1865, pp. 310, 311,) establishing a new line between Scott and Cape Girardeau coifnties, and by this line locating the land in Scott county; that Claude Benna claimed this land in 1854 and went to Jackson, the county seat of Cape Girardeau county, to pre-empt this laud, but the county court of Cape Girardeau refused to grant a title until tho disputed boundaries were settled. In the meantime Alexander Waugh got, in 1864, a patent from Scott county, and in 1865 the land was located by the Legislature in Scott county.
Tho following instructions were given for plaintiff: 2. If the jury believe from the evidence that Vollmers obtained possession of the realty from the deputy sheriff of Scott county in his official character by virtue of a writ of restitution and judgment in ejectment, and that Vollmers transferred such possession to Kimmel, and if you further believe from tho evidence that such possession lasted for three years or more in Vollmers and his grantee, Kimmel, then the defendants had no legal right to enter upon said land without the consent of Kimmel, and any such entry, without said consent, would be forcible and illegal, and you should find for plaintiffs unless defendants have established a title.
3. It is necessary for the defendants to show, to your satisfaction, that, at the time of the sale of tho realty by the sheriff’ of Scott county, Waugh, the execution debtor, had an interest in the land so sold; and if you. believe from the evidence that at the time of said sale Waugh had no interest in said realty, then the sheriff's deed conveyed no interest, and you should find for the plaintiff.
[59]*594. The jury is instructed that the statutes and common law of this State declare that “'no person shall enter upon or into any lands, tenements or other possessions and detain and hold the same, but when entry is given by law, and then only in a peaceable manner and if you believe from the evidence that the defendants did enter upon the possession of plaintiffs and detain from plaintiffs the possession of said realty, and if you further believe from the evidence that such entry was not given by law, or that such entry was not effected in a peaceable manner, then you should find for the plaintiffs.
5. If you find for the plaintiffs, you will assess the damages from the evidence that plaintiffs may have sustained for all waste and injury done by defendants and the rents and profits, from the time defendants took such possession to the present time; and if you find for the plaintiffs you will further find the monthly value of such rents and profits.
The following instructions were given for the defendants : 1. The court instructs the jury that if they are satisfied from the evidence that the land in controversy was patented to Alexander Waugh, Sr., in 1864, by the county of Scott, and that the deed from Waugh to Vollmers is a mere quit-claim deed made in 1859, then the title acquired by Waugh in 1864 will not inure to Vollmers and those claiming under him.
2. The court instructs you further, that if you are satisfied from the evidence that the interest of Waugh, acquired by patent from Scott county, was, by a sale of the sheriff of Scott county, conveyed to Claude Benna, and that defendants are his heirs, then you should find for the defendants, unless the plaintiffs have established a title superior to the title of defendants.
8. The court further instructs you that, although you may believe from the evidence that Vollmers recovered a judgment for the premises in controversy, yet the mere fact that such judgment was recovered would not authorize [60]*60Vollmers, or the sheriff, to eject Benna without a proper writ of restitution issued by the circuit clerk of Mississippi county, and that, if you are satisfied that the said Vollmers acquired the possession of the said premises by force and without such a writ having issued, tho, possession so acquired was wrongful.
5. The court further instructs you, that if the premises in controversy, prior to the year 1865, were a portion of the county of Cape Girardeau, and the said premises were swamp land granted by tho State to the counties in which situate, tho county of Scott could not legally sell, convey or patent the same while a part of the county of Cape Girardeau.
6. The court further instructs you, that tho former action of ejectment instituted by Vollmers, is no bar to the right of the defendants to make any and all.defenses they may have as against plaintiffs, Kimmel, in this case, unless you still further believe from the evidence that the defense in this case is in all respects and precisely tho same as the defense made in the case of Vollmers.
7 The court further instructs you, that the middle of tho main channel of the swamp was the boundary between Cape Girardeau and Scott counties prior to 1865, and that if you believe from the evidence that the said described real estate was situated north of the main channel of the Big Swamp, then you are authorized to find that the said real estate was situated in the county of Cape Girardeau until the 9th day of February. 1865, when the boundary line was changed.
8. The court further instructs you, that if you oelieve from the evidence.that the county of Scott, prior to 1865, sold by patent the premises in controversy, and that tho county of Cape Girardeau did not sell said land while situate in said county ; and further, that no one acquired any superior right and title to said real estate while situate in the county of Cape Girardeau, that the title acquired by Scott county by virtue of such change of boundary will [61]*61inure to the prior patentee of Scott county, and those claiming under him. And further instructs you, that if you believe from the evidence that Claude Benna, under whom the defendants claim from 1854, was in the open? notorious, hostile, adverse and continuous possession of tho said described real estate, claiming the same and making improvements thereon by cutting timber and clearing about seventy acres of land, and that Claude Benna had and hold such possession for ten years next after 1854, and up to the period he was forcibly dispossessed, you should find for the defendants.
There was a verdict and judgment for the defendants.
1. ejectment: judgment: estoppel. The principal question discussed by the appellants is, whether one judgment in ejectment is a bar to another action for the same property between the same parties. The question may be considered as not necessary to be decided in this case, sinco the court instructed tho jury “that the former action of ejectment instituted by Vollmers is no bar to the rights of defendants to make any and all defenses they may have as against plaintiff's in this case, unless you still further believe from the evidence that the defense, in this cace, is in all respects and precisely the same as the defense made in the case of Vollmers The defense wan not precisely tho same, since the defendants introduced the deed of the ¡sheriff of Scott county to Benna, which was coneededly not introduced on the trial of the ejectment case of Vollmers v. Benna; but it may be well enough to determine the general proposition, tho qualifications of which, in the instructions, are convoyed in such very definito and distinct terms. The instruction, as given, seems to have boen suggested by a remark of the loarned judgo who delivered the opinion of the court in Foster v. Evans, 51 Mo, 39, “that a judgment in ejectment is not a bar to another suit or to defenses set up in a subsequent ouit, unless the titles and defenses are precisely the same as thoy were in the first suit.”
[62]*62At the common law, which was adopted in this territory in 1816, it is hardly necessary to say that a judgment in ejectment was not a finality, whether the titles or defenses were the same or not. Adams on Eject., p. 420. As was observed by the- Supreme. Court of New York in 1.808 in the case of Jackson v. Dieffendorf, 3 Johns. 270: “ The amount of a recovery in ejectment is accurately and forcibly stated by Lord Mansfield in the case of Atkyns v. Hord, 1 Burr. 114. It is a recovery of the possession, not of the seizin or freehold, without prejudice to the right, as it may afterwards appear, even between the same parties. He who enters under it, in truth and substance, can only bo possessed according to right. If he has a freehold, he is in as a freeholder. If he has a chattel interest, he is in as a termor. If he has no title, he is in as a trespasser. If he has no right to the possession, then he takes only a naked possession. This is the obvious and established construction of the nature and effect of a judgment in the action of ejectment." In Botts v. Shields, 3 Littell 36, the court of appeals of Kentucky declared “that the doctrine is well settled that neither a verdict nor judgment in an ejectment concludes the parties from questioning the title in any subsequent contest about the same title.”
But it is unnecessary to multiply authorities on this subject, as the position is not disputed; but it is urged that since the act of 1807, (Terr. Laws, eh. 38,) abolishing lease, entry and ouster, the reason for the rule no longer exists, and the rule should, therefore, be abandoned. The act of 1807 is as follows: “ In all actions of ejectment the plaintiff shall declare in his proper name and instead of the fictitious suggestion of lease, entry and ouster, shall state that he is legally entitled to the premises, and aver the ejectment and trespass of the defendant, and the defendant, in his defense, plead not guilty, or plead his title according to truth; the parties having the same right of pleading, joining issue and demurring as in other cases,” &c. In the revision of 1825, (see title, ejectment,) this [63]*63provision of the law of 1807 was re-enacted, in terms with this addition, that “ it shall be sufficient for the plaintiff, on the trial, to show that he is and was, at the time of the commencement of the suit, entitled to the possession of the premises, and that the defendant was in possession thereof at the commencement of the suit.” In the revision of 1835 no change was made in regard to the form- or effect of this action, and in section 9 is repeated substantially what was in the former revision, to-wit: “To entitle the plaintiff' to recover, it shall be sufficient for -him to show that at the time of the commencement of the action the defendant was in possession of the premises claimed, and that the plaintiff' had such right to the possession thereof as is declared by this act to be sufficient to maintain the action.” This refers to entries at the U nited States land offices, pre-emption rights, New Madrid-locations, &e. In the revision of 1845 the same provision in regard to the force of the action is retained.
In the revision of 1855 the act concerning ejectment was copied from former revisions, with the exception of a single section, which was introduced as a new provision, and was obviously designed or supposed to change the law as it stood before in regard to the bar of a judgment. Section 33 provided that “ a judgment, except of non-suit, in an action authorized by this act (ejectment) shall be a bar to any other action between the same parties, or those claiming under them, as to the same subject matter.” Just two years afterwards, at the next session of the Legislature, this section 33 was repealed. See Sess.-Acts 1857, p. 34. And so tho statute law of this State has stood up to the present day.
Now let us see what construction has been .given to this legislation by the courts of this State. The first case in which the question comes up directly, and is decided clearly, is in 1862, in the case of Slevin v. Brown, 32 Mo. 176. The circuit court, in that case, had given the following instruction: “If the plaintiff, in this case, claims [64]*64under Anthony Tiernan, and. if the action brought by the defendant, John Brovin, against Anthony Tiernan and others, the record of which is in evidence.in this case, was brought for the recovery of the premises in question in this, suit and if the said Anthony Tiernan, or those claiming under him, set up as a defense in that action the identical claim of title on which the plaintiff now seeks to recover, then the judgment in that case, in favor of Brown, isa bar to this action.” The court says in reference to this instruction: “ This act for the recovery of the possession of lands, of 1855, (1 R. C. 1855, p. 695,) in section 38, provides that a judgment, except of non-suit, in an action authorized by this act, shall be a bar to any other action between the same parties, or those claiming by or under them, as to the. same subject matter. An act amendatory .of that act, approved November 21st, 1857, (Laws of Adjourned Session 1857,) repealed the 33rd section of' the original act, "We conceive this to be equivalent to declaring that such judgment is not a bar to another action.” The second case in which the subject is noticed is in 1866, in Carter v. Scaggs, 38 Mo. 304. In that case Judge Holmes merely remarks “one action of ejectment is no bar to another upon the same cause of action.” In Holmes v. The City of Carondelet, 38 Mo. 552, Judge Wagner observes : “ By the common law, contrary to the rules which govern in other actions, an action of ejectment may be brought repeatedly for the same thing, and the previous judgment will not constitute an estoppel. By the revised code of 1855, it was provided that a judgment in ejectment should be a bar to any other action between the same parties, or those claiming under them, as to the same subject matter, except in case of judgment by non-suit. An adjudication was made on this statute in the case of Miles v. Caldwell, 2 Wall. (U. S.) 35, and its propriety was strongly vindicated and extolled as being peculiarly proper and appropriate in this country, where ejectment is often used to try the. title of real estate. But in 1857 this statutory provis[65]*65ion making judgments in ejectment a bar, was repealed by tho Legislature, and the law restored as it previously existed.” Slevin v. Brown, 32 Mo. 176. The same position is reiterated in Gibson v. Chouteau, 50 Mo. 86, and this last case was decided in the same year, 1872, where the remarks occurred which we have quoted from the case of Foster v. Evans.
Thus it will be seen that from 1807 up to the present time, a. period of over seventy years, tho statute law concerning this action of ejectment, both before and after the practice act of 1849, with the exception of an interval of two years from 1855 to 1857, has remained substantially the same, and that the construction given to these acts by the courts has been equally uniform in regard to the effect of abolishing fictitious parties in 1807. That no case occurs in our reports previous to 1862, merely tends to show that in the opinion of the profession the common law rule concerning judgments in ejectment was the law of this State, except when a different one was enacted in 1855, and the repeal of that enactment shows clearly that after an experience of two years the common law rule was preferred. The opinion of this court also in Patterson and wife v. McCamant, 28 Mo. 210, though not touching at all upon the question, is evidently based on the assumption that the common law rule prevailed at that date, for it is manifest that no particular importance could be attached to the nature and efficacy of bills of peace if a single ejectment settled the title. It is a mistaken assumption that the sole reason for the ancient rule in regard to the want of finality of judgments in ejectment was the employment of fictitious parties in the proceeding. A judgment in ejectment confers no title upon tho party in whose favor it is given. “It is, therefore, manifest,” observes Mr. Adams in his treatise on ejectment, “ that the judgment can never be final, and that it is always in the power of the party failing, whether claimant or defendant, to bring anew action.” This reason is just as applicable [66]*66since the abolishment of case, entry and onster as before. And thus Chief Justice Hosmer, in Smith v. Sherwood, 4 Conn. 276, held that a former’judgment for the defendant in an action of deseizin (ejectment) on the issue of no wrong or deseizin was no estoppel of the plaintiff’s title, as such judgment might have been rendered on the ground that the defendant had not been in possession, or had possessed by license from the plaintiff, or on some other ground not involving the question of title.
It is true that since the courts have allowed parol testimony to establish the matters actually litigated in a case, without regard to the issues made by the pleadings, a change from the old law might seem more plausible and reasonable than when the courts held that to create an es-toppel the precise point of the judgment must be made to appear from the record alone. And we do not undertake to say that such an innovation might not be wise and beneficial, although the experiment in 1855 did not prove an acceptable one.
What is said by Lord Ellenborough in Outram v. Morewood, 3 East 358 and 5 T. R. 121, that a recovery in one action was a bar to another, and that this applied not to personal actions alone, but to all actions whatsoever, quoad their subject matter, is confessedly the law, but only shows that to make a judgment in ejectment conclusive of a title which has been investigated and decided, the nature of the action must be essentially changed. There is no inconsistency or contradiction between the decision of Lord Ellenborough in Outram v. Morewood and that of Lord Mansfield in the case of Atkyns v. Hord. No objection can be made to the rule laid down by Mr. Justice Miller in Miles v. Caldwell, based as it was on the 33rd section of the act of 1855, concerning ejectments, and upon the doctrine that the State courts shall be permitted to settle for themselves all questions affecting the title to real estate, and that the Federal courts would follow such rules. It is not necessary to a concurrence in this opinion that wo should [67]*67assent to the remarks of the learned judge in relation to the popular feeling in the Western States concerning transfer of' land, as contradistinguished from that in England and in the Eastern or older States. Tho action of our Legislature in Missouri on this very subject relied on by Judge Miller as justifying the remark leads us to doubt whether this State is willing to abandon the safe-guards of the common law, and place traffic in land on the same footing with that in horses and merchandise. In regard to the decision in Sturdy v. Jackaway, 4 Wall. 174, that in the statutes of Arkansas and their judicial decisions no difference is recognized between the conclusiveness of a judgment in real or personal actions,'we have nothing to say. We do not profess to be familiar with the statutes or decisions of that State; that it has been otherwise here has already been demonstrated by references both to the statutes and decisions.
We dismiss this point with extracting some remarks of Judge Roane of tho court of appeals of Virginia in 1819, which seem to be pertinent. The case before us being an ejectment, (and tho fourth ejectment between the same parties,) no verdict and judgment which may have taken place in the former actions can be relied on as a bar in this. If, however, any decision has been given, and particularly by the court in the last resort, in a former case, it is to be respected as an authority. It is to be so respected if it even occurred between other parties. * * This consequence grows out of our system of jurisprudence, which is based and bottomed upon decisions and precedents. While this system, thus understood, affords a check to the arbitrary discretion of the judges, it also sets up a standard by which our citizens may govern themselves in the formation of their contracts. The solemn decisions of our courts, therefore, especially of the court in the last resort, ought not to be lightly departed from. In the case of recent decisions, however, if they be' erroneous, they ought to bo corrected. They ought to be [68]*68corrected, because they are erroneous, and because, being recent, they'have probably not spread their influence extensively into the transactions of other citizens.” In accordance with these views, we think if changes in the law of ejectment arc deemed expedient, it is the province of the legislative department of tho State to make them, and that the judicial interpretation of our present law, which has prevailed for so long a time must remain the same until legislative intervention. As tho only error in the instruction given by the court on this subject was one which operated against the defendant, and the verdict was for the defendant notwithstanding, the error is certainly no ground for reversal.
3. quit-claim deed title presumptions. It is conceded that Waugh’s deed to Vollmers, in 1859, did not convey the title acquired by Waugh from Scott county in 1864. This point was expressly decided by this court in 1850, in the. cage of Bogy v. Shoab, 13 Mo. 365, and reiterated in Valle v. Clemens, 18 Mo. 486. But it is insisted that tho conveyance of Scott county to Waugh, in 1864, furnishes a reasonable presumption that prior thereto Waugh had an equitable inchoate right, and that this equitable or inchoate right passed to Vollmers by the deed of 1859. This presumption would be, in this case, directly in contradiction to the fact proved on the trial, since it was. clearly established, without any contradictory evidence, that tho Bennas, in 1859, were in the actual possession of this land, and had been since 1854, and had been applying to tho county court of Cape Girardeau county for a preemption from 1854, and continued in possession until they were removed by tho sheriff in 1870. In 1864, when Scott county patented this land to Waugh, the evidence in this caso clearly s'howed that the land was not in Scott county, but wholly north of the main channel'of the swamp, which, at that time, was tho line between Scott and Cape Girardeau counties. In 1865 a now division lino between the counties was made by tho Legislature, which threw the land [69]*69in Scott county. After this the deed from the sheriff to Bernia undoubtedly conveyed all the title which Waugh had. Whether he had any to be conveyed, it is unnecessary to decide, since the plaintiffs, who claimed under Vollmers, had no title whatever,
3. verdict. The questions of fact in regard to the manner in which the Hennas obtained possession of this land, after being ejected by the sheriff under the judgment of Vollmers, were submitted to the jury under instructions, to which no objections are made, and the verdict of the jury for the defendants must be regarded as conclusive on this point, as I do. not observe any evidence preserved on the subject. In short, without any review of the instructions in detail, it is plain that the plaintiffs, in this case, rely altogether upon the idea of former recovery, and the case itself presents a very good illustration of the wisdom of adhering to the old common law doctrine on that subject. Judgment affirmed.
Judges SiieRwood, IIbNRY and NORTON concur. J udge Hough dissents.