20 S.E. 723 | N.C. | 1894
The plaintiff brought an action against Garrison alone. Subsequently, the other two defendants were made parties, but no complaint or amendment was filed embracing them. The issue, verdict and judgment were against the defendant — in the singular. Writ of possession was sued out by plaintiff against Garrison alone and the plaintiff put into possession. More than a year afterward the plaintiff filed an affidavit that she recovered judgment also for land of which the other two defendants were in possession. Affidavits were filed (551) by the defendants, and the surveyor and the jury, that only the title to the tract of which Garrison was in possession was in controversy. We put no stress on defendants' contention that the writ of possession wasfunctus officio by having been returned executed, because it was only executed as to the land embraced in the execution, and the gist of the plaintiff's contention is, that the writ of possession should have been broader, so as to embrace the additional land. But his Honor found, "upon an inspection of the record, the complaint and answer, and the judgment and execution, and the return of the sheriff thereto, that said execution conformed to the judgment, and from the affidavits the writ of execution was issued and executed by direction of an agent of the plaintiff," and refused to issue another execution. His findings of fact from the affidavits, there being evidence on the point, is conclusive. Burke v.Turner,
Upon such findings of fact and an inspection of the record, we find no error. The title to the land now in dispute not having been put in issue in the former action, it is still open to the plaintiff to bring an action therefor, unless otherwise barred.
No error. *378
(552)
