101 S.E. 511 | N.C. | 1919
Lead Opinion
The motion of the defendant Justice for judgment upon the pleadings is upon the ground that as James Bailey bought the interest of bis two sisters after the former judgment in which it was adjudged that James, Aisley, Charlotte, and Justice was each entitled to a one-fourth interest in the land; that be was estopped to deny that be, Justice, was the owner of such one-fourth interest, and for this position be relies on Carter v. White, 134 N. C., 466, but this is a misapprehension of that decision.
In Carter v. White it was adjudged in an action of trespass that the defendant was the owner of one-fifty-fourths of a tract of land, and the
Again, the heirs of Jones Bailey were not parties to the former action, and cannot be bound by the judgment rendered therein, and the effect of the present judgment is to superimpose their interest on the shares of James Bailey and Justice alike. In other words, the former judgment was rendered upon the fact as it then appeared, that there were only four heirs entitled to share in the estate, and in this judgment this error of the parties is corrected by giving the representatives of the fifth heir their share.
The instruction which his Honor refused to give was properly denied, as it was equivalent to a peremptory instruction to the effect that the defendant Justice was the owner of lot D under the deed secured in the proceeding to foreclose the tax lien, when it was a controverted question as to whether the deed covered lot D, and it seems to have been adjudicated in the former action that it did not do so.
Judge Walker says in the former opinion, 174 N. C., 754: “He recovered the one-fourth interest claimed by him, as the verdict and judgment will show, but the presiding judge was of the opinion, and so held, that he had not offered evidence sufficient to locate the land bought by him at the tax foreclosure sale.”
It is is also found by the jury that James Bailey was not served with summons in the foreclosure proceeding and the heirs of Jones Bailey were not parties thereto.
These are the only exceptions discussed in the brief of counsel, and upon the whole record we find
No error.
Concurrence Opinion
concurring: In Carter v. White, 131 N. C., 14, it was held by Cook, J., for a unanimous Court, that a “judgment in partition proceedings allotting a defendant his share in severalty does not prevent his claiming an undivided interest with the plaintiff under an after-acquired title from one not a party to the action, in an ejectment or partition proceedings.” On another appeal in the same case, Carter v. White, 134 N. C., 466, the former decision was overruled by a divided Court, it being then held that “A judgment in a partition proceeding determining the respective interests of parties thereto is binding on said parties as against an after-acquired title.” It has been held in Harrison
In 21 A. and E., 1193, it is said that, “Both in voluntary and judicial partition the decree does not create or divest any title to or other right in the property, but merely severs the unity of possession and determines the share which each tenant is entitled to possess in severalty.”
Practically, though not expressly, the first decision in Carter v. White, 131 N. C., 14, has been reinstated in Weston v. Lumber Co., 162 N. C., 169-173. This last case has been cited with approval in Olds v. Cedar Works, 173 N. C., 166-167, and Stallings v. Walker, 176 N. C., 323.
But, independent of that, Carter v. White has no application to this case, for here Jones Bailey and his children were not parties to the former proceeding in partition, and are not bound thereby. They have not been deprived by the former proceeding of their interest in this land, and have a right to have their one-fifth interest now allotted and set apart; to be superimposed, so to speak, upon the former partition, which will result in taking one-twentieth from ~W. T. Justice, who was formerly allotted one-fourth of the land; and four-twentieths from James J. Bailey, who, claiming under the former partition, was entitled to three-fourths, which is now reduced by the claims of the heirs of Jones Bailey to three-fifths; while the former allotment of one-fourth, which Justice holds under the former partition, will be reduced to one-fifth.
Lead Opinion
CLARK, C. J., concurring.
The motion of the defendant Justice for judgment upon the pleadings is upon the ground that as James Bailey bought the interest of his two sisters after the former judgment in which it was adjudged that James, Aisley, Charlotte, and Justice was each entitled to a one-fourth interest in the land; that he was estopped to deny that he, Justice, was the owner of such one-fourth interest, and for this position he relies on Carter v. White,
In Carter v. White it was adjudged in an action of trespass that the defendant was the owner of one-fifty-fourths of a tract of land, and the *102 plaintiffs the owners of fifty-three-fifty-fourths thereof, and it was held in a subsequent proceeding for partition that this judgment estopped the defendant, from setting up an after-acquired outstanding title, which, if allowed, would have defeated the effect of the former judgment, while in this action James Bailey has simply bought the shares of his two sisters as they were adjudged to be in the former action, and his purchase in no way affects the defendant Justice.
Again, the heirs of Jones Bailey were not parties to the former action, and cannot be bound by the judgment rendered therein, and the effect of the present judgment is to superimpose their interest on the shares of James Bailey and Justice alike. In other words, the former judgment was rendered upon the fact as it then appeared, that there were only four heirs entitled to share in the estate, and in this judgment this error of the parties is corrected by giving the representatives of the fifth heir their share.
The instruction which his Honor refused to give was properly denied, as it was equivalent to a peremptory instruction to the effect that the defendant Justice was the owner of lot D under the deed secured in the proceeding to foreclose the tax lien, when it was a controverted question as to whether the deed covered lot D, and it seems to have been adjudicated in the former action that it did not do so.
Judge Walker says in the former opinion,
It is also found by the jury that James Bailey was not served with summons in the foreclosure proceeding and the heirs of Jones Bailey were not parties thereto.
These are the only exceptions discussed in the brief of counsel, and upon the whole record we find
No error.