Turner v. Southeastern Grain & Livestock Co.
102 S.E. 849
N.C.
1920
Check Treatment
Allen, J.

Thе plaintiffs do not note any exception in the record to the refusal of his Honor to strike out the admission solemnly made, and the only question therefore presented by their appeal is whether the admission, which it is not alleged was inadvertently made, or by mistake, or that it is not according to the truth, is sufficient to sustаin the judgment.

It has been long recognized with us that admissions made by counsel during the progress of a cause, and to facilitate the trial, are binding upon the parties, and if this were not so, much time would be consumed in proving facts about which there is no controversy.

It not infrequently happens in the course of an aсtion to try the title to land that the plaintiff introduces a great number of deeds in his chain of title in which the desсriptions are not always identical, ‍‌​​‌​​‌‌‌​‌‌​​‌​‌‌‌​‌​​​‌​​‌‌‌‌‌‌‌‌‌‌​‌‌‌‌‌​​‌​‌‍and that the defendant’s counsel, knowing that the deeds cover thе land, do not require proof of identification, and in this way much time can be saved, and so it is in the trial of other actions.

In Fleming v. R. R., 115 N. C., 693, the Court says of admissions equally as important as the one made in this case:

“When two оf the counsel for the defendant admitted in the progress of the trial, on behalf of their client, that the рlaintiffs owned and were possessed of the land, it was not error in the court to instruct the jury to respond in the affirmative to the first issue, involving the question of title and possession. In the same way, counsel were bound by their admission that 'Great Swamp was a natural watercourse and drain for said land,’ and were not at liberty, аfter the trial, to except to the instruction to the jury to write the response, in accordance with their express agreement.
“The same principle applies to the consent of counsеl given 'in open court, at the close of the charge, that the jury need not respond to eaсh amount of damage separately, ‍‌​​‌​​‌‌‌​‌‌​​‌​‌‌‌​‌​​​‌​​‌‌‌‌‌‌‌‌‌‌​‌‌‌‌‌​​‌​‌‍if more than one cause of damage was found to exist, but thаt they might find the aggregate amount for all causes, and respond only to the ninth issue on that question.’ ”

*460 Again, in Lumber Co. v. Lumber Co., 137 N. C., 438: “Parties undoubtedly have tbe right to make agreements and admissions in tbe course of judicial proceedings, esрecially wben tbey are solemnly made and entered into and are committed to writing, and wben, too, tbey bear directly upon tbe matters involved in tbe suit. Sucb agreements and admissions are of frequent occurrence and of great value, as tbey dispense witb proof and save time in tbe trial of causes. Tbe courts recognize and enforce tbem, as substitutes for legal proof, and there is no good reаson why tbey should not. ‘Admissions of attorneys bind their clients in all matters relating to tbe progress and trial of tbe cause, and are, in general, conclusive.’ 1 Greenleaf on Ev., 186. ‘Unless a clear case of mistake is made out, entitling tbe party to relief, be is held to tbe admission, which tbe court will proceed to act uрon, not as tbe truth in tbe abstract, but as a formula for tbe solution of tbe particular problem beforе it, namely, tbe case in judgment, without injury to tbe general administration of justice.’ Ibid., 206: Wharton on Ev., 1184, 1185, and 1186.”

We are, therefore, of оpinion that there is no error on tbe plaintiffs’ appeal.

Tbe defendants’ appeal prеsents tbe simple question as to whether tbe allegations of tbe defendant in tbe answer that tbey are tbе owners of tbe land in controversy and in possession thereof constitute ‍‌​​‌​​‌‌‌​‌‌​​‌​‌‌‌​‌​​​‌​​‌‌‌‌‌‌‌‌‌‌​‌‌‌‌‌​​‌​‌‍a counterclaim, beсause if it is a counterclaim it was tbe duty of tbe plaintiffs to file a reply thereto, and upon failure tо do so tbe defendants would be entitled to judgment for want of a reply.

“Tbe criterion for determining whether а defense set up can be maintained as a counterclaim is to see if the answer sets up a сause of action upon which the defendant might have sustained a suit against the plaintiff; and if it does, then suсb cause of action is a counterclaim; and it must disclose sucb a state of facts as would entitle the defendant to bis action, as if be was plaintiff in the prosecution of bis suit, and should contain the substanсe of a complaint, and, like it, contain a plain and concise statement of the facts сonstituting a cause of action.” Garrett v. Love, 89 N. C., 207.

Again, in Askew v. Koonce, 118 N. C., 531, it is said: “Unless a defendant has some matter existing in bis favor and against tbe рlaintiff, on which be could maintain an independent action, sucb claim would not be a counterclаim.”

Tested by this rule, we are of opinion that tbe ‍‌​​‌​​‌‌‌​‌‌​​‌​‌‌‌​‌​​​‌​​‌‌‌‌‌‌‌‌‌‌​‌‌‌‌‌​​‌​‌‍defendants have not alleged a counterclaim.

If thеy bad instituted an independent action alleging simply that they were the owners of the land and in possession it would have been the duty of the court to enter judgment of nonsuit, because if they owned the *461 land and were in possession, nothing else appearing, they bad no cause of complaint.

The case would be different if, as in Roper Lumber Co. v. Wallace, 93 N. C., 23, and in Yellowday v. Perkinson, 167 N. C., 147, there were аllegations entitling the defendants to equitable relief, or if it had been alleged that the plaintiffs were setting up a claim which amounted to ‍‌​​‌​​‌‌‌​‌‌​​‌​‌‌‌​‌​​​‌​​‌‌‌‌‌‌‌‌‌‌​‌‌‌‌‌​​‌​‌‍a cloud upon their title, but none of these allegations apрear in the answer, and as they are relying upon the letter of the law they must abide by it.

Affirmed on both appeals.

The plaintiffs will pay the costs on the plaintiffs’ appeal, and the. defendants the costs on the defendants’ appeal.