Kipp

This action . was brought to quiet title to the lands described in the complaint. The defendant filed an answer and cross-complaint wherein he alleged himself to be the owner and in the possession of the premises, and he prayed for judgment accordingly.

At the trial the only evidence presented upon the issue, of ownership was that offered by plaintiff. No evidence was offered by defendant.

To sustain his alleged title plaintiff introduced certain United States patents issued to defendant to the land in controversy. Over objection, he then offered in evidence a judgment-roll in a former action to quiet title brought by him against the defendant concerning the identical lands described in complaint herein. Plaintiff then rested his case, whereupon defendant moved for a nonsuit, which was denied. Judgment went for plaintiff. As ground for reversal it is claimed that plaintiff waived the benefit of any estoppel in his favor against the defendant which might have been available to him, arising out of the former adjudication of the same issue between the same parties, for the reason that he did not plead or rely upon such judgment.

Under these circumstances, appellant claims the…