55 S.E.2d 468 | N.C. | 1949
Plaintiff and defendant are husband and wife. In the complaint it was alleged that in October, 1937, land was purchased with the joint earnings and savings of both with the agreement that title to the land should be taken in the names of both, but that the defendant, who handled the closing of the negotiations for the purchase of the land, in violation of the agreement, had deed made to herself alone; that upon discovery of this fact in October, 1947, plaintiff instituted suit to establish a resulting trust and to have her decreed trustee for his benefit as to one-half interest in the land; that after filing his complaint in that action, upon the defendant's oral promise to make him a deed for his interest in the land, plaintiff in November, 1947, had judgment entered "that the matters and things in controversy have been settled between the parties," and that therefore it was "adjudged and decreed that plaintiff be nonsuited." The defendant having failed and refused to make the conveyance as promised, the plaintiff in February, 1948, instituted this action for substantially the same cause as that in which the judgment had been entered, that is, to enforce a resulting or constructive trust and to have the defendant declared trustee ex maleficio for his benefit as to one-half interest in the land. The dealings between the parties in respect to this land, and the circumstances under which plaintiff alleges the deeds were made, are set out at length in the complaint.
The defendant answered denying the material allegations of the complaint, and setting up the judgment of November, 1947, referred to in the complaint, as an estoppel by judgment, and a bar to plaintiff's action. The court below was of that opinion, and rendered judgment on the pleadings dismissing the action.
The plaintiff has elected to treat the judgment rendered in November, 1947, as merely a voluntary nonsuit, and has within a year brought a *721
new action for substantially the same equitable cause of action. Based upon this premise, his position is undoubtedly correct that the court would not be warranted in dismissing his present action as res judicata without finding adequate facts. Batson v. Laundry Co.,
The plaintiff admits that he had the judgment of November, 1947, entered as it appears of record, but that the inducement or consideration therefor was the oral promise of the defendant to convey to him a half interest in the land, and that defendant afterwards failed and refused to do so. He does not allege fraud. He has not attacked the judgment or sought to vacate it. Hence standing upon the docket it is a judgment of retraxit, and it bars a new action. Before he can prosecute another action for the same cause he must in some proper way remove this judgment from his pathway. Moody v. Wike,
The defendant's demurrer on the ground that plaintiff husband could not in any event maintain an action against his wife for the causes set out in his complaint was overruled, and defendant did not appeal. Carlisle v. Carlisle,
On the record and for the reasons herein set out, we conclude that the judgment should be
Affirmed.