*1 IN THE SUPREME COURT. WagoN Company Byrd. BYRD, COMPANY,

PIEDMONT WAGON et al. v. WILLIAM et al.

Writ Assistance —Practice—Res Estoppel. Judicata — 1. competent jurisdiction or decree of a court of subject-matter actually conclusive not as to the deter- thereby every mined but also as to other matter which properly belonged subject litigation, to the and which parties, by diligence, might the exercise of reasonable brought forward at time and had determined respecting it. against B, action to foreclose a .In one M inter- by allegations vened and his answer denied the of the com- plaint, alleged, why as a further defense decree of sale made, should not be that he was the owner and in fee possession B, (through tenant) his land. At by trial he plaintiff, assented to the issues tendered which did not include the one raised as to his title. There foreclosure, (from was a prose- decree of which he failed to sale, appeal,) by cute an conveyance a confirmation commissioner; Held, plea by M, of sole seizin counter-claim, being by operation law, a was denied and thus an issue as to the title was raised M supported by proof, which should have tendered having neglected estopped to do so the cause. purchaser 3. In such case the at the sale is entitled a writ of place Assistance him in of the land. (Faircloth, J., dissents, arguendo, Eurchks, J., O. in which concurs.) in Wilices heard before pending County, aotion, Civil Norwood, at J., Term, 1896, of Wilices Spring Superior Court, on a motion for writ of Assistance plaintiff, the Piedmont which had Wagon Company, purchased land sold under decree of foreclosure. The motion was refused and The facts plaintiff appealed. appear of Associate Justice ClarK. opinion O.]

Wagon *2 W. W. and T. Messrs. Barber B. Finley, plaintiffs (appellants).

No counsel eontra. J.: This was an action brought against

Clabic, J. foreclose mortgagors mortgage. Martin, who was not one of the on bis own mortgagors, was application defendant, made a filed his and answer denying and aas further defense alleged, complaint why decree of “ made, sale should not be that he is the owner fee and in lawful of the lands possession described in the com further that the were plaint,’’alleging mortgagors his merely and tenants without title to the land, and ashing that the action be dismissed. This thereupon plea of sole himself, counter-claim, seizin in not was being denied by Code, law, Section and (The operation 268,) thus an issue as said Martin’s raised title was on the pleadings. v. Charlotte, C., Bank N. 75 At the trial he assented to the issues which were tendered plaintiff, though raised as to his his one title answer not included, and for sale of the land '-endered being upon he but did verdict not prosecute his appealed appeal. Martin out of the might case, possibly stayed he saw to intervene and raised the proper issue of title himself, and that the other defendants were his tenants in order merely to defeat a decree that lands said be sold. This new matter of defense was therefore his and it was litigation upon allegation, him incumbent to tender issue, upon proper Max well v. 113 N. McIver, C., 288; v. Kidder McIlhenny, C., 81 123 McDonald v. Carson, C., 377; C., 56, Walker v. 106 N. Scott, numerous other cases cited in Code, Clark’s ar.d if (2d Ed.,) did page not he-cannot of his complain own consequences IN THE SUPREME COURT.

Wa&ON incumbent, him It was not tender neglect. raised his of title but the issue allegation support Robeson, 100 N. as he (Wallace 206,) by proof, him. failed to do so went properly against this, case was “on all-fours” with an inter- That being -who set title to the also (and up property, pleader posses- as in this failed to introduce evidence to sion, ease,) Martin, his The defendant after com- allegations. support the action and his into the issue raising by ing of title have tendered the issue and possession, evidence; and when he should offered having spoken *3 heard, be when he have been should not now heard should herein, He is which be silent.” estopped judgment sale of the land as the decreed the other property would him To hold otherwise be to defendants. permit with the Court and with the trifle rights purchaser, the decree of sale as at con- who least rely upon all who were to the in clusive action persons parties which it was rendered. are

The principles estoppels by governing a line of decisions this and other established by long and we have no desire a States, to take new departure will shake law as to res the.long-settled which judieata. in 1 This rule is thus stated Herman on Sec. Estoppel, a list of authorities there is fortified by long leading a : The or decree of court cited possessing is final as to the matter subject competent jurisdiction determined. extends further. It principle thereby final as to the matter is not determined only actually which other matter as to parties every might litigate cause, and which had decided. have they might the rule can no It This extent of hardship. impose requires a than reasonable atten- no more degree vigilance a course and often tion ; might dangerous different 0.]

WAGON teed to all It unsettle the determina- might oppressive. law and a door tions of for infinite vexation. open sound And rule is founded on tlie same author- principle.” “The Section res ity, says: plea judicata applies, cases, to the which only except special points upon form an court was required by opinion but to which pronounce judgment eveiy point properly to the and which litigation belonged subject theparties, reasonable exercising diligence, might brought forward at the time and determined it.” It respecting has been the decision Jordan urged Farthing, C., 181, this Court intended to abandon this beaten strike out new Such was not path our departure. intention. In that case land been sold under mort- having his action the mort- against gage, purchaser brought and made the additional gagor mortgagee party plaintiff. raised was whether only question sale, was a valid and the Court observes that it would have “ if been had owed one dollar or mortgagor amount, and other it was out of the con- question tend that the accounts of the (a mortgagor mortgagee course of outside the long dealings transaction) *4 had been introduced in that action” between the pur- chaser of the land and the But here we have mortgagor. an different In a case. to foreclose entirely proceeding Code, Martin Sec. 267,) properly interpleads, (The claiming he, that and not the land, is the owner of the mortgagors, and that therefore the foreclosure should not be ordered. issue, The title of the been thus interpleader having put had, ordered, the trial the foreclosure sale is and the and abandons his afterwards interpleader appeals appeal. motion, It also affidavitin which is not this denied appears by that the as assented to the issues tendered. interpleader Under sold the circumstances, these when the land was IN THE SUPREME COURT.

WagoN Company v. that Martin was a to the seeing purchaser, proceed- he had filed his answer there ing, setting np himself, be no sale because the title was in and had after the trial court decreed foreclosure, entitled to that the rely'upon principle binds judgment it, to the fall all certainly raised parties scope points and was not into the required pleadings, go minutiae of the trial to ascertain whether each and every issues or proper court parties proposed opeu abandoned or waived his to insist them. right upon action are entitled to’the the trial equally regard as decisive of the and raised points plead- or which them. might properly predicated ings, Beaman, C., 259, v. so far Jones as the facts of that concerned, from on, case are distinguishable present as v. Jordan the same so far Farthing, supra, grounds herein as it differs from the stated its principles express- oloiter and are overruled. were ions merely writ of Assistance should therefore issue. Exum C., Smith, C., 115 N. 242 Coor Baker, 107 N. 430 ; 94 N. v. Houghtalling, Knight

Reversed. I J.,C. cannot with the dissenting: agree Eaiecloth, On March of the Court. the defendant majority .$100, his note to White for and he executed and wife Byrd same 640 acres of land. In secured mortgage White the same note and year assigned August & this action on default was Isley Coffey, and foreclosure. Defendants brought Byrd wife, J. O. filed no answer. Martin mortgagors, answer, and filed which he intervened disclaimed the matters between knowledge alleged plaintiffs he was owner in and the alleged mortgagors, land, lawful of said that he fee *5 O.] WagoN Company

so notified White before and the note were exe- mortgage cuted, also that was his tenant all time, the and has Byrd been for and years, asks that the action be dismissed. Term, 1894, cause, At for coming trial, on Spring these issues were submitted : without to-wit objection,” “ 1. What amount indebted to <fc Byrd Isley Coffey Ans.,’ executed to %White mortgage ‘$100.’ “ 2. Did White & assign Isley Coffey Ans’.,‘Yes.’” value?

No other issue was or submitted. It was proposed of recover and wife adjudged plaintiffs Byrd $100 and an order of sale and foreclosure, and after the debt paying and costs “the residue to paid to defendant.” At Fall Term, 1895, the sale, commissioner and that reported Piedmont Co. was the at Wagon purchaser $125.

sale was confirmed and commissioner ordered to make deed to said All of purchaser. said lands were sold commissioner. Martin of notice gave never appeal it. in 1896 prosecuted said Early wagon company its through facts, above attorney, reciting applied Norwood for a Judge writ assistance, of petition plac- wagon possession of the ing company land described in the complaint and to oust from said land the defendants Martin, Byrd hearing petition disallowed. wagon company excepted appealed. It does writ has been appear issued. is one presented but a question practice, one. The very important wagon company, only plaintiff considered, that need now be is a at a purchaser judicial sale was not of record party It during litigation. interest purchased whatever be. It Byrd, may is not it pretended other interest. purchased any It could not do so. else could have sold, been Nothing is evident that neither nor the court so under-

119 —30 *6 COURT. THE SUPREME IN 466 Bybu. WagoN v. neither clear that par- trial. It is at the equally

stood a of Mar- intended sale or nor the court understood ties not land was Title to the had title,.if any. he tin’s condem- or no in trial. Debt debt involved con- interest were only of questions nation "Byrd’s sidered. in defendant is that Martin

The position plaintiff’s tried, of title submitted have issue a to position to so and that do failing be to will adverted later,) (which title in this or from any any is asserting he now estopped such as To grant against plaintiff. other proceeding doctrine of any extend the estoppel beyond would a request law, in the of Lord in a court reached, days even point of time, in this especially country, Since that Colre. its has been modified by of preserving doctrine estoppel now its doctrine accepted without hardships. benefits ; Crom cases: is found in numereous Estoppel Bigelow Beaman, v. S., 351; 94 U. Jones Sac., County well of v. Williams, N. C., 259 91 Temple 117 is discre not one of A writ assistance is of right to when a court of be issued with chancery, just tionary court, to are made and reasonable grounds appear. A. B. a as that take done, has thing when it decreed writ "n order its will issue the effect give possession, in But in into decree. purchaser possession, pur putting with decree, its it will not interfere or attempt, suance of doubt, of in of to settle claiming cases right party or to that of the title paramount mortgagee possession was made. other whose favor the decree will clear writ is only discretionary granted Thomas, DeBaum, 37. The issuance McCarter, case. the writ the sound discretion of the Court, rests is clear and it is used when the where there right defendant, and it no or equity equity appearance 0.] WAGON V. CoMUANY BYRD. issue writ where there is certainly customary

a ~bona as to the land, contest to the right fide or where rights respective not been *7 in the suit. 2 Enc. of Pl. fully adjudicated principal Practice, Meter v. 980; Borden, Van 25 ; N. J. 414 Eq., v. 69 484. Ala., Hooper Yongs, in Where the claimed to hold the party prem “ said,

ises before the the Court It mortgage, enough that the claim of is not clear.” v. petitioner Thomas “ 14 BeBaum, N. J. In 37. doubtful cases the Eq., writ should Carlisle, refused.” v. Ala., Wiley 93 238; v. Conover, Schenck 13 J.N. 220 v. Eq., Knight Hought C.,N. aling, In consonance with these Court, this principles “

exercise of its discretion, refused said, the writ and As as to settled, title is still to be controversy we deem it best for that we should not declare that only it was error to the writ as but that we grant prayed which pass upon in still arise question may another v. action.” Exum Baker, C., 115 N.

The further insists that in plaintiif averment Mar- tin’s answer of in as fee, title stated, above was denied by statute, and an in issue of title was raised, that way and his failure to submit or tender an issue of title awas waiver, that he on cannot be heard to appeal complain orto assert his claim again i. land, e. he in that If it be assumed for estopped respect. the argu- ment that such issue was raised, does the conclu- sion drawn him follow?

This is of as we question practice, said, and it as well be stated may candidly decisions of this Court on the have'not all cases question been uniform or consistent, and the same be said of may other State courts on mere of questions practice. comes question COURT. SUPREME IN THE V. BYRD. COMPANY

WAÍ50H wavs: In the case of Kidder McIlhenny, various up deed, of a was held it C., 81 N. validity involving issues as he deemed failed to tender such if a be heard to could not on complain appeal proper case, the entire did not cover submitted the issues author These cases are to the same effect. others followed of contention. this for the plaintiff’s injustice ity Court, the minds this itself upon rule soon pressed Whitaker, held that 92 N. in Bowen “ Code, if the issues are not 395 of The pre under Section who tries it is the attorneys, duty judge pared that case, so.” the Court case to do Speaking said: MeerimoN, Code-method J., procedure, Procedure, as at first this adopted The Code Civil State, of fact by for the trial of issues *8 provided jury, manner of them making it did not the particular specify 219 to P.,G. Secs. 240. This and them. C. submitting up and much dissatisfaction m at to confusion rise once gave evil, This the the law. Court the recognized practice rules and its practice authority prescribe acting upon courts, 4 and 5, adopted Rules for the superior prescribed C., 705. in 65 These Term, 1871, at June reported in time issues of fact should rules directed how and what construed to be however, drawn They were, only be up. in time. The unless insisted strictly directory, apt in and carelessness of that, was the result hurry practice much came to be too much prevailed, they neglected,, that unsatisfactory, verdicts became and, as conséquence, found much difficulty this Court often ascertaining very had or had not been settled the by from the record what issues of fact where several especially jury, findings it To cure this felt evil has had been submitted. severely “the issues 395 of The Code that been Section by provided shall tried, material to be be upon the arising pleadings, TEEM, O.] WagoN Company ®.

made attorneys up by action appearing reduced to or before or writing, by judge presiding further, trial; Section during 396, that issues shall be framed in concise and terms; direct and prolixity and confusion must be' avoided not too having many issues. It will be observed that of these language pro- visions is that strong mandatory; they require issues of fact shall be made and shall framed, &c. up are It was the They mandatory— the court to see duty that the trial to its proceeded according (statute) mandatory ; requirements it should have authority, having required the counsel to frame the issues and reduce them to writing, ‘ or, for do cause, this, failing judge presiding should have done so before or the trial.’ It is not during sufficient did not say appellant propose proper issues or that he must be taken to have waived them. It does not that he did waive them appear ; it does certainly he did so it appear indeed, seems affirmatively did not. But it to the court appearing raised issues of fact that have not been tried n according law, the court could not cer- give judgment, while the was tainly appellant present objecting.” McDonald v. Carson, 94 N. Again, the defend ant because his Honor submitted excepted additional issue raised Court, and this C. pleadings, J.,) (SMITH, said, “There is not no error this, but *9 of the court to see that all material controverted mat duty ters contained in the were and put eliminated issues, the form of as commanded the statute,” by citing v. Whitaker, Bowen as supra, authority.

In Maxwell v. McIver, 113 relied upon by the this Court plaintiffs, fell into the same that position his Honor did in Bowen v. Whitaker, whose mistake supra, was corrected this Court in that case, as shown above. by COURT. THE IN SUPREME

WagoN Robeson, on Wallace The relies plaintiff mainly fail- the to-wit, for C., 206, as its authority proposition, to That of to tender an issue as title. was ure defendant and Griffith an attachment of personal property. Higgins own- were the and averred that bona they interpleaded fide sub- Honor His drew ers of the attached property. “ and Griffith mitted this Did the issue: purchase Higgins a valúa in the described complaint (interplea) property ”? and without notice ble consideration interpleaders tips was the burden upon insisted that issue -proof upon of the burden upon His Honor held that the plaintiffs. and declined to intro- They excepted interpleaders. sus- issue. This Court duce any testimony support question Honor, his presented tained saying single rest was, the issue ? whom did the burden of of Upon proof the inter- in attachments Code, Sec. provides owner, he is also affidavit must pleader allege his title and stating grounds right possession, under held that such and title.” The Court of right the bur- such statute, jparticularity plea, requiring their who lost case of was on the den interpleaders, proof to introduce their evidence. because failed they solely an lull is such There no statute particularity requiring in a case like the He like present. pleads interpleader to land in issue. others title is when the last-cited case to is present resemblance There, as was submitted issue not easily perceived. There, was submitted o.ne. here, by any title no issue burden proof; case turned alone upon question the fore- from here, Apart no such presented. question which to correct grant there 'any principle going, do so ? ? or reasonable Is it just the plaintiff’s petition 640 acres of he, take Should this extraordinary process, land forever from and cut off Martin $125, land for *10 1896. O.] Shober ». Wheeler.

claims, his be bet without trial of title? Would v. Balter, Exum as was writ, ter to refuse the done have their-titles let supra, upon parties passed If an issue had been submitted as to the the usual way? & would title, interpleader’s plaintiffs Isley Coffey have had same was rendered certainly would have all the trial, at the the purchaser acquired claims, which he interest con under veyed him and is there reason for any any equitable giving I think be affirmed. more? -T.: I concur the dissenting opinion.

Furohes, SHOBER, F. E. et al. v. H. WHEELER. W. with on

Practice —Case Service Appeal, of—Parties t Interests —Certiorari. Differen side are on the same the interests of several Where may appeal on one identical on be served case .they are ; different and them but when their interests are appeal represented counsel, must be a case on different set; oniy will as to such as are so served served each granted judge a certiorari fails to settle when the appeal. case on for the certiorari application should be based In such case the otherwise, upon docketing of the rest of the record the certiorari objection ground, wall be on that denied. for certiorari.

Motion appellaut & Messrs. Watson Buxton, plaintiff. Patterson, <&

Messrs. Jones for defendant (appellant).