19 S.E. 606 | N.C. | 1894
"Where a person enters into a tract of land under a written contract to purchase it, he becomes a tenant at will to the bargainor and is estopped from denying his title in an action of ejectment brought against him to recover the possession." Dowd v. Gilchrist,
"An estoppel is the conclusive ascertainment of a fact by the parties, so that it no longer can be controverted between them. (556) It is not solely the result of the act of the parties themselves, but may be by the adjudication of a court appointed to try the facts. After an estoppel has thus arisen, if the existence of the fact contrary to it is averred by one of the parties the other may show it by pleading if it be not already apparent upon the record, and pray judgment if it shall be controverted. But if the party seeking the benefit of the estoppel will not rely upon it, but will answer to the fact and again put it in issue, the estoppel, when offered in evidence to the jury, loses its conclusive character, becomes mere evidence and like all other evidence may be repelled by opposite proof; and the jury may, upon the whole evidence, find the truth. This is the rule only in cases where the party relying upon it has had an opportunity of pleading it as an estoppel and does not do so, but takes issue on the fact. Where he has no opportunity of pleading it as an estoppel, as in actions of ejectment and others where the pleadings are general, there the estoppel retains its exclusive character and the jury must find according to it. This is common learning and common sense; by departing from it we are involved in many difficulties and absurdities." Woodhouse v. Williams,
The plaintiff in his reply admits the contract between Isaac Suttles and plaintiff's ancestor for the purchase of the land, and denies that the defendant or those under whom he claims ever paid for the land or any portion of the purchase-money, and alleges that the same is still due and owing, and denies the allegations of fraud and all other material allegations of the answer. But the plaintiff does not plead that the defendant is estopped to deny that he is the plaintiff's tenant by reason of his occupation of the land under the contract of purchase, he joins issue on the facts alleged by the defendant as his ground for substantive relief and thereby submits to the jury to pass upon the truth of the matter.
Such being the state of the pleadings, his Honor submitted the single question whether Isaac Suttles had paid for the land, upon which the answer to the other two issues depended.
If the estoppel had been pleaded it would have been proper to have submitted the second issue tendered by defendant, for an affirmative response to this issue would have relieved him from the estoppel. In view of the admissions of the parties the issues submitted seem to have covered all their contentions.
Upon the intimations of his Honor the plaintiff asked to be allowed to take a nonsuit, which was denied.
The defendant had set up in his answer a counterclaim for (558) substantive relief. In this class of cases there is the exception to the general rule, as stated in Bank v. Stewart,
No error.
Cited: Weeks v. McPhail,