69 S.E. 924 | N.C. | 1910
It appeared in evidence that the tract of land lying west of the dividing line formerly belonged to Milas Edmonson, and on his death plaintiffs and defendants, his children and heirs at law, instituted proceedings for the purpose and same was duly partitioned, the portion lying nearest to an adjoining tract having been allotted to Laura Gillam, one of the petitioners in the present suit, and was set apart to her by metes and bounds, and in which the dividing line between the Milas Edmonson tract and the tract adjoining to the east was recognized and described as being the line B, C, D, E. The present petition instituted by plaintiffs, children and heirs at law of the same Milas Edmonson, against J. W. Edmonson, and Mary Clontz, the other children and heirs at law, proceeds upon the theory that the true dividing line between the Edmonson and the Angell lands was the line F and E, and that no partition has ever been had of the portion contained in the rectangle B, C, D, F. It appeared further that J. W. Edmonson, one of the children and heirs at law of Milas, who was a party to the first partition proceedings, having since bought the adjoining tract from S. H. Angell, resists further partition on the ground that the parties to the original proceedings are estopped to allege or show that the dividing line between the Edmonson and Angell tracts was other than the line B, C, D, E, as recognized in that case; but the position can not be sustained. The doctrine (130) is that an estoppel of record will bind parties and privies as to matters in issue between them, but it does not conclude as to matters not involved in the issue, nor when they claim in a different right. As to the proposition contained in the first portion of this statement, it has come to be well recognized that the test of an estoppel, by judgment, is the identity of the issues involved in the suit. Tyler v. Capehart,
No error.
Cited: Smith v. Lumber Co.,