The case shows that prior to the year 1850, Amesti and Castro were respectively and severally in the possession of two contiguous ranchos known as the “Corralitos” and “San Andreas,” each claiming under an inchoate Mexican grant. In that year the executors of Castro brought an action of ejectment against Amesti for the recovery of a parcel of land, claiming that it was included within the San Andreas Bancho, and belonged to the estate of Castro. In his answer, Amesti sets up title in himself, under the grant to him of the “Corralitos.” The action resulted in a verdict and judgment for the plaintiffs therein, which became final in the year 1859. In the meantime, proceedings for the confirmation of the titles to the two ranchos had been progressing before the proper tribunals of the United States; and in the year 1861 a patent in due form issued to Amesti, which includes the premises recovered by the executors of Castro in the ejectment suit. Castro’s claim to San Andreas was also finally confirmed in 1857, and an official survey thereof was made by the Surveyor-General, which was approved by him in November, 1860.

The survey excluded from the rancho the premises recovered in the action of ejectment. The claimants under the grant, being dissatisfied with the survey, caused the same to be returned into the District Court for revision, under the Act of Congress of June 14, 1860, by a decree of which Court the survey was approved, and this decree was afterward affirmed on appeal to the Circuit Court, and has become final. In the year 1863, the plaintiffs, who are the heirs and devisees of Amesti, to whom his estate has been distributed, commenced the present action of ejectment to recoter from the defendants claiming under Castro, the same lands, which were recovered by the executors of Castro in the former action. At the trial the defendants set up no other defense than that the judgment in the former *329 action, estops the plaintiffs from asserting their title; and, in support of this defense, offered in evidence the judgment-roll in that action. The Court excluded the evidence and entered judgment for the plaintiffs. On the appeal by the defendants the only ground of error relied upon is the ruling of the Court in excluding the judgment-roll.

So far as I am aware, the question here presented is res integra in this Court. We have been referred to no case, nor am I aware of any, in which the question has been decided. The general rule, however, is well settled in this State and elsewhere, that when title is put in issue and tried, in an action of ejectment, the judgment will conclude the parties and their privies from again litigating the same title in another action between the same parties or their privies. If it were conceded, therefore, that the title which the plaintiffs now hold under their patent is the same title within the true meaning of the rule, which was in issue or might have been asserted in the former action, there would be an end of the argument. But, in my judgment, it is not the same title within the sense of the rule. When the former action was tried, Amesti had only an incipient title, but had commenced proceedings to acquire the complete title, and had proceeded so far as to obtain a concession, which implied a promise by the government that at some future time it would ascertain and definitely fix his boundaries and invest him with the absolute title. But until these acts were performed, he was permitted to occupy the land. This was his status and such his relation to the land, when the United States acquired California. Under the treaty of cession it became the duty of the Federal Government to examine his title, and if found to be such, that in equity and good conscience, it would have been the duty of the Mexican government to ripen it into a complete estate, with well-defined boundaries, the United States government assumed upon itself the same obligation in this respect that before rested on the government of Mexico. It alone, or its properly constituted tribunals, could adjudicate his claim, fix his boundaries and invest him with a perfect title. But while proceedings for this purpose were in prog *330 ress, he was liable to be harassed with litigation in the State Courts, questioning the correctness of his boundaries, denying the authenticity or validity of his concession, and impugning his right to the possession. He had no means of preventing such litigation; and when his title and right to the possession were attacked in an action of ejectment, he had no other alternative than either to surrender his estate or defend himself as best he might, before the State Court and jury, upon his incipient title, with perhaps his vague and ill-defined boundaries. Nor had the State Court the necessary machinery or the requisite jurisdiction to investigate and determine the nature and legal effect of Amesti’s title so as to conclude him by its judgment from afterward asserting it, when found to be valid and ripened into a perfect title, by the tribunals of the United States. These tribunals alone, in the last resort, could pass an authoritative judgment upon his title or estate; and when they invested him with the complete title, he acquired a new status which he had not before. His title, which before was only incipient, has become perfect. His boundaries which perhaps were vague, have become fixed and certain. His title, though perhaps not new in an absolute sense, has taken on a new quality, and, in a legal sense, is a different title from that which he had before.

These views find much support in Waterman v. Smith, 13 Cal. 417, 418 ; Merriman v. Bourne, 9 Wall. 592 , and in Montgomery v. Beavans, recently decided by Mr. Justice Field at the Circuit. For these reasons I am of opinion that the judgment-roll in the former action was properly excluded.

I am not, however, to be understood as holding that the State Courts may not in any case adjudicate rights claimed under unconfirmed inchoate Mexican grants. All that the exigency of the present case requires to be decided, and all that is intended to be decided is that, if such adjudication be adverse to the claimant, the judgment will not conclude him from asserting his rights in a new action, after his claim shall have been finally confirmed and patented.

Judgment affirmed.

I concur with Mr. Justice Crockett in the proposition “that if such adjudication be adverse to the claimant, the judgment will not conclude him from asserting his rights in a new action, after his claim shall have been finally confirmed and patented;” but I think the proposition requires a qualification in order to adapt it to the exigencies of the case, that is to say, if the question on which the adjudication turned was a question of boundary, then the adjudication will not preclude him from relying upon a patent subsequently issued to him, as definitively fixing the boundaries of the land granted.

Mr. Chief Justice Wallace, being disqualified, did not sit in this case.