Tyler v. . Capehart
34 S.E. 108
N.C.
1899
Check Treatment
ClabK, J.

The plaintiffs brought a former action against the defendants, alleging a conveyance of a certain tract of land to the defendants’ testator in parol trust to reconvey when he had sold timber off the land to the amount of $1,117 due said trastee, and that be “had sold sufficient timber from the land to pay said debt” and asking a reconveyance. This was not contested, and a reconveyance was by consent decreed in that action. The plaintiffs in this action allege that the value of the timber sold from the land by the defendants’ testator while such trustee was $3,600, and seek to recover the surplus above $1,177. The defendants set up' the plea of res judicata.

The present cause of action might have been set up as a second cause of action in the first proceeding. But adjoining it was optional with the plaintiffs. They were not compelled to do so. Gregory v. Hobbs, 93 N. C., 1; Lumber Company v. Wallace, Ibid, 26; Code, sec. 267. The allegation in the former action was that the defendants’ testator had received *69 from sale of tbe timber “sufficient” to pay off th.e trust debt, but whether he had received any, and if so, what amount, over and above the $1,177, which entitled the plaintiffs to a decree for reconveyance,was not actually litigated and was not “such matter as was necesarily implied therein,” which is the test laid down in Williams v. Clouse, 91 N. C., 322; Wagon Company v. Byrd, 119 N. C., 460. In the latter case, no issue as to J. 0. Martin was submitted but he had filed his answer in which he denied the plaintiff’s title and claimed to be sole owner. The issue thus raised by the pleadings “was therefore in litigation, and it was incumbent upon Martin 'to tender the proper issue and to support it by proof,” and as he failed to do so it was held that the judgment decreeing title in the plaintiff was an estoppel on Martin — “not having spoken when he should have been heard, he should not be heard when he should be silent.”

The appellant, who relies upon Wagon Company v. Byrd, supra, places stress upon the expression therein quoted from 1 Herman on Estoppel, secs. 122, 123, that a judgment is an estoppel and final “not only as to the matter actually determined but as to every other matter which the parties might litigate in the cause and which they might have had decided.” These words must be construed with the context. The controverted point in that case -was whether a judgment was an estoppel as to the issues raised by the pleadings, and which could be determined in that action, or only as to those actually named in the judgment. The Court held the former to be the rule settled by the reason of the thing and by the authorities. It was not held that where (as in the present case) other causes of action could have been joined the judgment was final as to them also. It was only intended to say that the cause of action embraced by the pleadings was determined by a judgment thereon, whether every point of such cause of action was *70 actually decided by verdict and judgment or not. Tbe determination of tbe action was lield to be a decision of all tbe points raised therein, those not submitted to actual issue being deemed abandoned by tbe losing party, who did not except. Wallace v. Robeson, 100 N. C., 206. Tbe opinion in Wagon Company v. Byrd, supra, farther on expressly says “the judgment is decisive of tbe points raised by tbe pleadings or which might properly be predicated upon them.” This certainly does not embrace any matters which might have been brought into the litigation, or any causes of action which the plaintiff might have joined, but which in fact are neither joined nor embraced by the pleadings.

The decision in Wagon Company v. Byrd, went to this extent and no further. It has since been cited as authority (by Eueches, J\), in Hussey v. Hill, 120 N. C., 315, and in Meadows v. Marsh, 123 N. C., 189.

In the present case the cause of action for reconveyance was equitable, the other for the money received for sale of timber after the receipt of $1,177 necessary to pay off the claim of the trustee was an action at law, and while they might have been, and probably ought to have been, joined in the former action, no issue as to the latter cause of action was raised by the pleadings, nor was it a necessary ingredient in passing upon the mtat-er in litigation, which was the right to a recon-veyance and nothing more. Jordan v. Farthing, 117 N. C., 181. In overruling the plea of former judgment there was

No error.