Mr. Justice Culbertson
delivered the opinion of the court.
Appellants, Amanda Bitter and Josephine Bitter Schmidt (hereinafter called plaintiffs), have appealed from a judgment of the circuit court of Monroe county, sustaining a motion to dismiss plaintiffs’ complaint and in bar of plaintiffs’ action, which motion was filed by appellee, Louis Gr. Bitter (hereinafter called defendant).
The plaintiffs are the widow and daughter of Joseph Bitter, who died intestate, and they have filed their complaint against defendant to recover damages occasioned by them as a-result of defendant’s alleged wrongful conduct, arising out of a certain real estate transaction between defendant and the said Joseph Bitter during the latter’s lifetime. In the complaint it is alleged, in substance, that the defendant and Joseph Bitter had agreed upon the purchase of certain property at a foreclosure sale, and that if there was no redemption of said property, the said Joseph Bitter, as a result of the advancement by him of a certain sum of money, was to receive a portion of such property known as the “Nixon property” (defendant was to receive adjoining property). The certificate of purchase for the real estate involved was taken by the said defendant and Joseph Bitter, as joint tenants. Sometime thereafter the said Joseph Bitter became mortally ill and it is alleged he inquired of the defendant if he, the defendant, would endeavor to cheat the plaintiffs in this action, out of their interest in such property in the event of the said Joseph Bitter’s death, but was advised by the defendant that he would not cheat the plaintiffs out of their property, and that they would obtain title to the Nixon property as was agreed upon.
It is further alleged in the complaint that such representations were made by the defendant for the false and fraudulent purpose of lulling the said Joseph Bitter into a sense of false security, and to prevent him from severing the joint tenancy relationship in the certificate, and from conveying his interest in the premises to the plaintiffs. It is, likewise, alleged that after the death of Joseph Bitter, the defendant, for the purpose of cheating and defrauding the plaintiffs, presented the certificate of purchase to the master in chancery and caused a master’s deed to be executed to him, the defendant, which he thereupon filed for record. After plaintiffs had demanded that defendant convey such property to them he refused to do so, but claimed to be the sole owner thereof. It is then alleged in the complaint that in order to protect their rights in the said Nixon property, it was necessary for plaintiffs to institute a chancery suit against defendant in the circuit court of Monroe county, which suit was contested by defendant, who claimed ownership of the property. Such action was prosecuted to a successful conclusion, and a decree was entered in said cause, ordering defendant to convey said real estate to plaintiffs, as well as directing certain other specific relief.
Plaintiffs, likewise, allege that by reason of the conduct of the defendant, plaintiffs were required to institute such action, and were required to expend a large sum of money for attorney’s fees and other expenses, which were necessary to the successful prosecution of said suit. Plaintiffs pray for judgment in the sum of $5,000, and costs.
In a second count, in addition to the allegations contained in the first count, plaintiffs aver that the acts of defendant were wilful and malicious, and were done for the purpose of cheating and defrauding* plaintiffs, and in such count plaintiffs pray for punitive damages in addition to actual damages sustained by them.
Defendant filed a motion to dismiss the complaint, alleging, in substance, that the complaint was insufficient in law and failed to state a cause of action or establish any right in plaintiffs to recover damages against defendant, and also, that the complaint showed upon its face that the matters therein alleged were adjudicated in the previous chancery action herein-above referred to, which was instituted by plaintiffs as against defendant, and that, therefore, the judgment rendered in the previous cause is “res adjudicata” and is a bar to the claims and demands of plaintiffs set forth in the complaint filed in the instant cause. The court allowed defendant’s motion and entered judgment in bar of plaintiffs ’ action and for costs.
On appeal to this court, it is contended by plaintiffs, and denied by defendant, that said complaint states a cause of action, and that the former decree referred to in the statement of facts, and in the complaint, is not “res adjudicata” as to the matters presented in the complaint.
While it is true that as a general rule, and in the absence of any contractual or statutory liability therefor, attorney’s fees and expenses incurred by a plaintiff, or which a plaintiff is obliged to pay in litigation of his claim against a defendant, are not recoverable as damages against the defendant because they are deemed to be too remote (Matarrese v. Monaco, 274 Ill. App. 457; Chicago Coliseum, Club v. Dempsey, 265 Ill. App. 542), still, it has been well established in this and other States that, if a defendant’s intentional wilful and wrongful conduct results necessarily in plunging a plaintiff into litigation and in causing him to incur expenses in protecting his property rights, the conjunction of wrong and damage in such circumstance gives rise to a cause of action on behalf of such plaintiff, as against the wrongdoer (Himes v. Keighblingher, 14 Ill. 469; McEwen v. Kerfoot, 37 Ill. 530; Philpot v. Taylor, 75 Ill.309).
It is contended by the defendant that, while this principle operates if a plaintiff is forced into litigation with a third party, it does not apply where the wrongful acts of a defendant have involved plaintiff in litigation with the same defendant in a previous action. A rule, quoted from certain legal compilations by defendant, is advanced, which, in substance, declares that the right to recovery in a case of this character applies only when plaintiff has been previously involved in litigation with others than the defendant as the result of previous wrongful acts of the wrongdoer who is later made a defendant in the action in which the attorney’s fees are sought to be recovered. Defendant contends that it is only when such litigation with third parties is undertaken, or forced upon a plaintiff, that the attorney’s fees incurred can be treated as a legal consequence of the wrongful act of a defendant. We cannot agree with such contention.
In our opinion, no sound distinction is to be made between instances, where the wrongful act of the defendant necessitates action by plaintiff as against that defendant, and cases where action against third parties is required to be undertaken in order to repair the damages which may have been done by such wrongdoer. It would indeed be anomalous if a defendant, by arbitrary action of the character outlined in the complaint, could defeat the right of a plaintiff to recover damages by retaining title in himself and refusing to make a conveyance to a plaintiff. In our opinion, the result of a defendant’s wrongful conduct, where action is required to be instituted against such defendant, is equally as apparent as it is in cases where action would be required to be instituted or defended as against third parties.
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Mr. Justice Culbertson
delivered the opinion of the court.
Appellants, Amanda Bitter and Josephine Bitter Schmidt (hereinafter called plaintiffs), have appealed from a judgment of the circuit court of Monroe county, sustaining a motion to dismiss plaintiffs’ complaint and in bar of plaintiffs’ action, which motion was filed by appellee, Louis Gr. Bitter (hereinafter called defendant).
The plaintiffs are the widow and daughter of Joseph Bitter, who died intestate, and they have filed their complaint against defendant to recover damages occasioned by them as a-result of defendant’s alleged wrongful conduct, arising out of a certain real estate transaction between defendant and the said Joseph Bitter during the latter’s lifetime. In the complaint it is alleged, in substance, that the defendant and Joseph Bitter had agreed upon the purchase of certain property at a foreclosure sale, and that if there was no redemption of said property, the said Joseph Bitter, as a result of the advancement by him of a certain sum of money, was to receive a portion of such property known as the “Nixon property” (defendant was to receive adjoining property). The certificate of purchase for the real estate involved was taken by the said defendant and Joseph Bitter, as joint tenants. Sometime thereafter the said Joseph Bitter became mortally ill and it is alleged he inquired of the defendant if he, the defendant, would endeavor to cheat the plaintiffs in this action, out of their interest in such property in the event of the said Joseph Bitter’s death, but was advised by the defendant that he would not cheat the plaintiffs out of their property, and that they would obtain title to the Nixon property as was agreed upon.
It is further alleged in the complaint that such representations were made by the defendant for the false and fraudulent purpose of lulling the said Joseph Bitter into a sense of false security, and to prevent him from severing the joint tenancy relationship in the certificate, and from conveying his interest in the premises to the plaintiffs. It is, likewise, alleged that after the death of Joseph Bitter, the defendant, for the purpose of cheating and defrauding the plaintiffs, presented the certificate of purchase to the master in chancery and caused a master’s deed to be executed to him, the defendant, which he thereupon filed for record. After plaintiffs had demanded that defendant convey such property to them he refused to do so, but claimed to be the sole owner thereof. It is then alleged in the complaint that in order to protect their rights in the said Nixon property, it was necessary for plaintiffs to institute a chancery suit against defendant in the circuit court of Monroe county, which suit was contested by defendant, who claimed ownership of the property. Such action was prosecuted to a successful conclusion, and a decree was entered in said cause, ordering defendant to convey said real estate to plaintiffs, as well as directing certain other specific relief.
Plaintiffs, likewise, allege that by reason of the conduct of the defendant, plaintiffs were required to institute such action, and were required to expend a large sum of money for attorney’s fees and other expenses, which were necessary to the successful prosecution of said suit. Plaintiffs pray for judgment in the sum of $5,000, and costs.
In a second count, in addition to the allegations contained in the first count, plaintiffs aver that the acts of defendant were wilful and malicious, and were done for the purpose of cheating and defrauding* plaintiffs, and in such count plaintiffs pray for punitive damages in addition to actual damages sustained by them.
Defendant filed a motion to dismiss the complaint, alleging, in substance, that the complaint was insufficient in law and failed to state a cause of action or establish any right in plaintiffs to recover damages against defendant, and also, that the complaint showed upon its face that the matters therein alleged were adjudicated in the previous chancery action herein-above referred to, which was instituted by plaintiffs as against defendant, and that, therefore, the judgment rendered in the previous cause is “res adjudicata” and is a bar to the claims and demands of plaintiffs set forth in the complaint filed in the instant cause. The court allowed defendant’s motion and entered judgment in bar of plaintiffs ’ action and for costs.
On appeal to this court, it is contended by plaintiffs, and denied by defendant, that said complaint states a cause of action, and that the former decree referred to in the statement of facts, and in the complaint, is not “res adjudicata” as to the matters presented in the complaint.
While it is true that as a general rule, and in the absence of any contractual or statutory liability therefor, attorney’s fees and expenses incurred by a plaintiff, or which a plaintiff is obliged to pay in litigation of his claim against a defendant, are not recoverable as damages against the defendant because they are deemed to be too remote (Matarrese v. Monaco, 274 Ill. App. 457; Chicago Coliseum, Club v. Dempsey, 265 Ill. App. 542), still, it has been well established in this and other States that, if a defendant’s intentional wilful and wrongful conduct results necessarily in plunging a plaintiff into litigation and in causing him to incur expenses in protecting his property rights, the conjunction of wrong and damage in such circumstance gives rise to a cause of action on behalf of such plaintiff, as against the wrongdoer (Himes v. Keighblingher, 14 Ill. 469; McEwen v. Kerfoot, 37 Ill. 530; Philpot v. Taylor, 75 Ill.309).
It is contended by the defendant that, while this principle operates if a plaintiff is forced into litigation with a third party, it does not apply where the wrongful acts of a defendant have involved plaintiff in litigation with the same defendant in a previous action. A rule, quoted from certain legal compilations by defendant, is advanced, which, in substance, declares that the right to recovery in a case of this character applies only when plaintiff has been previously involved in litigation with others than the defendant as the result of previous wrongful acts of the wrongdoer who is later made a defendant in the action in which the attorney’s fees are sought to be recovered. Defendant contends that it is only when such litigation with third parties is undertaken, or forced upon a plaintiff, that the attorney’s fees incurred can be treated as a legal consequence of the wrongful act of a defendant. We cannot agree with such contention.
In our opinion, no sound distinction is to be made between instances, where the wrongful act of the defendant necessitates action by plaintiff as against that defendant, and cases where action against third parties is required to be undertaken in order to repair the damages which may have been done by such wrongdoer. It would indeed be anomalous if a defendant, by arbitrary action of the character outlined in the complaint, could defeat the right of a plaintiff to recover damages by retaining title in himself and refusing to make a conveyance to a plaintiff. In our opinion, the result of a defendant’s wrongful conduct, where action is required to be instituted against such defendant, is equally as apparent as it is in cases where action would be required to be instituted or defended as against third parties. We realize that the doctrine involved in the instant case must be limited to such cases as clearly demonstrate that legal action is necessarily required on the part of a plaintiff to protect certain property rights as a result of the wrongful or malicious conduct of a defendant. The legal expenses incurred in such necessary action may furnish the proper basis for a cause of action as against defendant. We, therefore, feel that the complaint herein states a cause of action.
It is likewise contended by defendant that the former decree in the chancery action, in which the right of the plaintiffs to the property was adjudicated, acts as an estoppel, and that the doctrine of “res adjudicata” applies so as to prevent the assertion in this action of plaintiffs’ claim for damages occasioned by defendant’s wrongful conduct. From the record before us it appears that the claim of plaintiffs, which is asserted in the complaint in the instant case, was not presented, considered, or passed upon in any way in the previous action. The contention which has been advanced that the fact that the claim of plaintiffs might have been asserted in the chancery action which was previously litigated, forever bars its assertion in a subsequent action, is not sound. While the right to recovery in this case, grows out of the former litigation, and is founded upon it, the claim for damages was not asserted, nor passed upon, in any manner, in the previous litigation, and it would not be requiring the parties to relitigate the previous proceeding in any manner since there has been no final decision in the prior case as to the precise subject matter involved in the instant case (Smith v. Rountree, 185 Ill. 219; Brown v. Brown, 286 Ill. App. 471). The claim of plaintiffs constitutes a separate and distinct claim, and plaintiffs have the right to institute a separate suit on such claim (Clancey v. McBride, 338 Ill. 35; Quinn v. Ohlerking, 37 Ill. App. 315).
We must, therefore, conclude that the action of the circuit court of Monroe county, in sustaining the motion to dismiss, and in entering judgment in bar of plaintiffs’ action, was erroneous.
This cause will, therefore, be reversed and remanded to the circuit court of Monroe county, with directions to overrule defendant’s motion to dismiss, and to proceed in accordance with the views expressed in this opinion.
Reversed and remanded.