majority">Canty, J.

In July, 1880, plaintiff made to defendant, Chisholm, a bond for a deed of the land in dispute, conditioned that plaintiff would convey this land to Chisholm by “quitclaim deed in fee simple,” on being paid the sum of $400, for which CMsholm made to plaintiff five promissory notes, due at different dates. In April, 1884, plaintiff commenced an action in the- District Court against defendant for the recovery of the amount due on the fourth note. The defendant answered, alleging that the only consideration for this note was the bond for deed, and that plaintiff never had any title to the land; that he purchased believing that plaintiff had title, and paid the first three notes; that he tendered to plaintiff the amount of the other two notes, the one in suit and the last one due, as a full performance of the contract on his part, and demanded that plaintiff convey the land to him in fee simple, but defendant refused to do so, or do anything but execute to defendant a quitclaim deed of the land, which defendant refused to accept. The plaintiff replied, admitting the making of the bond, the receiving of the *153notes, the payment of the first three, and alleged that he had title to the land. On these issues the case was tried by the court without a jury in July, 1887, and the court “ordered that said defendant have judgment for his costs and disbursements.” The court made no findings of fact, but stated in a footnote that the attorneys agreed that findings were unnecessary. On February 20, 1888, judgment was entered for defendant, pursuant to this order.

This is an action of ejectment commenced in 1892 for the recovery of the possession of the premises. The defendant answered, admitting that he is in possession, and pleaded all of the foregoing facts as a bar to this action. On the trial in the court below, without a jury, the court found that defendant is in possession, and that all of the other allegations of plaintiff’s complaint are untrue, and ordered judgment for defendant, and, from an order denying a motion for a new trial, plaintiff appeals.

We will first consider what effect the judgment in the former action had on the rights of the parties in this action. No evidence was given in this suit of what the controversy was in that suit, except what appears from the pleadings and order for judgment. In the absence of fraudj an agreement to execute and deliver a quitclaim deed is a sufficient consideration for a promissory note. Washington Life Ins. Co. v. Marshall, 56 Minn. 250, (57 N. W. 658.) While the agreement was to convey the premises in fee simple, free of incumbrance, yet there were to be no covenants of warranty, and, while it is probable that the answer in that suit stated no defense whatever, the court must have held that it did, and must have found that plaintiff had no title to the land, and held that defendant was not estopped from making this defense, though he went into possession under the bond for deed, and that there was no consideration for the notes. It has sometimes been held, where the pleadings are as general and indefinite as they may be under some of the common-law forms, that the pleadings and verdict alone are not sufficient from which to determine what the exact controversy between the parties was, but this does not apply where the pleadings are as special and the allegations as specific as they are in that case. Again, it has often been held that, where some of the allegations or counts in an answer are good and others are bad, it will not be presumed that the defendant prevailed *154on the had counts or allegations, but this rule does not apply where there is but one count in the answer, and all the allegations in it arc-bad. If it sufficiently appears on what points the defendant prevailed, and he prevailed on the merits, whether right or wrong, the judgment in his favor is res judicata on these points.

It seems to us that, by reason of that judgment, it is now res judicata between these parties that the plaintiff had no title, that his contract required him to give the defendant a title, that there was no consideration for the notes given for the purchase price, that the contract between them was rescinded or at an end, and that, on surrendering possession, defendant was entitled to recover back the part of the purchase money already paid. But the defendant may be estopped from denying plaintiff’s title in one kind of an action while he may not be in another.

The defendant now claims under a paramount title, acquired in 1883 or 1884, but it sufficiently appears that he went into possession of the premises three or four years before that, under this bond for deed. For this reason he is estopped, while he remains in possession, from denying the plaintiff’s title, whether it is good or bad. Sedg. & W. Land Title, § 317. But while it must for this reason be held, for the purposes of this action, that defendant is estopped to deny the plaintiff’s title, the court below has found that plaintiff has no title. This was error, for which a new trial must be granted.

Whether or not what was admitted by the pleadings in the former action sufficiently appears in this action, — that defendant paid plaintiff a part of the purchase price of the land, — we do not decide. Neither do we decide whether or not such payment gave him, as an equitable defense, the right to retain the possession until it is repaid, as decided in Turner v. Marriott, L. R. 3 Eq. 744. The court' below made no findings on these matters, and for that reason they are not properly before us.

The order appealed from is reversed, and a new trial granted.

Buck, J., absent, sick, took no part.

(Opinion published 58 N. W. 873.)

Application for reargument denied June 5, 1894.

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