23 S.E. 179 | N.C. | 1895
James McDaniel, Sr., devised certain lands, of which the locus in quo is a part, to his son Starkey in fee, defeasible (226) in the event that the devisee should die leaving no lawful heir or issue surviving him, in which event the lands should be equally divided between the devisor's surviving sons. It was also declared in the will that if the son Starkey should desire to sell the lands and mills, the five or surviving sons should have the offer of purchase, at a price to be fixed by valuation if they could not agree, should they be disposed to do so.
In McDaniel v. McDaniel,
In a learned opinion it was adjudged that the five or surviving brothers should be put to their election, under the direction of the court, either to take the land in the manner prescribed or to decline it. What were the rights of the purchaser at the Sheriff's sale and his assignees and of those under the several conveyances from Starkey McDaniel, are questions not now before the Court. Each party claims under and through said Starkey, and the question turns upon the question of *155 estoppel, arising out of the judgment set out in the records and rendered at Fall Term, 1883, in which Starkey McDaniel was plaintiff and E. R. Page, Lewis M. Pollock and C. M. Pollock were defendants. The plaintiff claimed title in fee and alleged fraud in his conveyance to James McDaniel and demanded that the sale through the Sheriff be declared a trust for his benefit and that he recover the land from said E. R. Page and Lewis M. Pollock, said Page being the party under whom the plaintiff claims title by virtue of a judgment and commissioner's sale in 1888. The defendants Page and L. M. Pollock answered separately, denying the main allegations of the plaintiff, Starkey, and claimed titled to the lands of which they were in possession. The judgment was, as set out in the record, that the defendant Lewis (227) M. Pollock was the owner of the part in excess of the homestead (the locus in quo) and that Page was the owner in fee of the homestead estate, and the action was dismissed as to C. M. Pollock.
The plaintiff insists that she is not concluded by said judgment, because Page, her grantor, and Pollock answered separately and there was no antagonism between them, each defending for separate parts of the land.
On examination of the record we find that the plaintiff, Starkey, sued for and demanded possession of the whole tract of land, alleging that the Sheriff sold in fact subject to the homestead, but conveyed the entire estate by deed to the purchaser. Defendant Page in his answer denies the material allegations of the complaint and alleges that he is owner in fee of said premises. The defendant Pollock answers and denies all the material allegations and says further that he has had a long and quiet possession and ought not to be disturbed.
It is quite apparent from these pleadings that an intelligent trial required that the rights of the defendants as well as the plaintiff should be fully determined and settled, as appears from the judgment was done, and we think the plaintiff is concluded by the record from denying the ownership of the locus in quo to be in Lewis M. Pollock. The rule seems to be that a judgment against several defendants determines none of the rights of the defendants among themselves, but only the existence and legality of the demand. Where, however, the respective rights of the parties are drawn in issue by them and adjudicated, the judgment is conclusive between them. If the party, however, entitled to the benefit of a judgment opens the same in part it will be open for general purposes in the second action, as if it does not contain within itself orders or directions sufficient to carry it into effect, and can no longer be treated as res adjudicata. (228) Parties unwilling to be made plaintiffs are frequently made defendants *156
for the very purpose of having their rights adjudicated and to have titles quieted. If the parties have had a hearing and an opportunity to be heard and assert their rights they are concluded as far as it affects their rights presented and passed upon by the decree of the court. This question is discussed in 2 Black Judgments, section 599, in Corcoran v. Canal Co.,
No Error.
Affirmed.
Cited: Jones v. Beaman, post, 263; Weeks v. McPhail,
