58 S.E. 757 | N.C. | 1907
W. G. Lang, mortgagee, sold the land now in controversy (82) under a power of sale in a mortgage executed to him by M. R. Turnage and wife, plaintiffs herein. It was duly advertised and sold. The regularity of the proceedings is not questioned. J. A. Lang was purchaser of the land at said sale, 8 February, 1897. Soon thereafter J. A. Lang brought an action against Turnage and wife to recover said land, and in his complaint alleged that he was "the owner in fee simple" of the land (describing it) ; that Turnage and wife held possession; asking judgment to recover it and damages for the detention. The defendant filed no answer, and judgment by default final was entered at March Term, 1897, of the Superior Court for that county, and the writ of possession issued under which J. A. Lang was put in possession 19 April, 1897. J. A. Lang conveyed to W. G. Lang 23 March, 1897, and the land has been in his possession, or in the defendant's, claiming under him, ever since.
This action was begun 28 January, 1905, the plaintiff averring that J. A. Lang bought at the mortgage sale as agent for his father, the mortgagee, claiming that hence the sale was void, and asking that the defendants be decreed trustees of the plaintiffs, and for an account of rents and profits. The answer denies that J. A. Lang bought as agent for his father, and sets up as further defense the judgment between J. A. Lang and the defendants at March Term, 1897, as an estoppel; that the claim is furthermore a stale claim, by reason of the delay for nearly eight years to assert it, and also pleaded the seven years statute of limitations. At the close of the evidence the court intimated an opinion that the plaintiffs were estopped and could not recover, whereupon they took a nonsuit and appealed.
In the former proceeding of ejectment the judgment determined Only the possession, and did not prevent another action if it went against the *60
plaintiff, for it did not pass upon the title. Under the present system a judgment in an action for the recovery of land is conclusive of (83) "all matters presented by the pleadings, or which may be properly predicated upon them." Tyler v. Capehart,
The complaint in the former action between these parties at March term of the Superior Court alleged that the plaintiff therein, J. A. Lang, was the "owner in fee simple" of the premises; that they were withheld by the defendant, and asked to recover possession. This put the title in issue. Certainly J. A. Lang was not seeking to recover possession as mortgagee, for he was not mortgagee, but was asserting his title as purchaser. The judgment by default final was as conclusive of his allegation of ownership in fee as if there had been an issue framed and the fact found by a jury thereon. It was held in Johnson v. Pate,
In Tuttle v. Harrill,
It is not necessary to pass upon the other two defenses set up, but we are inclined to think they are both valid. Even if the purchase had *61 been by J. A. Lang as agent for the mortgagee in point of fact, though nominally for himself, such purchase was not void, but merely voidable, and the conduct of plaintiffs in leaving the country, asserting no claim or right for eight years, until lands rose in value, would seem an abandonment of claim. There are certainly no surrounding circumstances, such as nonage, intimidation, oppression and the like, which should induce a court of equity to overlook the lapse of time. Nor are we prepared to say that the lapse of seven years after the ouster by judgment and an adversary holding thereunder, and under the subsequent deed of J. A. Lang to W. G. Lang, is not full protection. The decree and deed are both color of title, certainly, and the holding was adverse from the execution of the writ of possession in April, 1897. However, it is not necessary to pass upon either of these points, and we are not to be understood as doing so.
We hold that the judge properly decided that the former judgment between these parties was an estoppel as to the land in controversy in this action.
Affirmed.
Cited: Roberts v. Pratt,
(85)