Allred v. Smith

• Decision Date: 17 May 1904
• Parties: ALLRED et al. v. SMITH et al.
• Court: North Carolina Supreme Court

47 S.E. 597

135 N.C. 443, 135 N.C. 504

ALLRED et al. v. SMITH et al.

Supreme Court of North Carolina

May 17, 1904

Appeal from Superior Court, Randolph County; Long, Judge.

Proceedings for partition by B. M. Allred and others against H. D. Smith and others. From a judgment reversing a judgment of the clerk of the superior court sustaining a demurrer to the answer plaintiffs appeal. Affirmed.

Clark C.J., dissenting.

Parties claiming rights in property by virtue of a judgment should set up the entire record in the suit in which the judgment was rendered, in order to enable the court to see what was in litigation and what adjudged.

Nancy Allred was the owner of the land in controversy, all parties to the land claiming title under her. She died leaving the plaintiffs and defendants her heirs at law. Prior to her death she executed a deed for the land in controversy to the defendant G. D. Allred. The plaintiff Willie Allred, after the death of her mother, instituted an action in the superior court against the defendant G. D. Allred, alleging that at the time of the execution of said deed the said Nancy Allred did not have sufficient mental capacity to execute the same that she did not assume to sue for or in behalf of any children heirs at law of said Nancy Allred. At July term, 1903, the cause came to trial, and upon an issue submitted to the jury it was found that the said Nancy Allred did not have the sufficient mental capacity to execute the said deed, and it was "ordered, adjudged, and decreed that the deed described in the complaint, and which is recorded in Book 99, p. 310, in the office of the register of deeds of Randolph county, and which purports to convey the land described therein from Nancy Allred to the defendant G. D. Allred, is void, and of no effect; and it is further ordered, adjudged, and decreed that the said deed be delivered up and canceled of record; and it is further ordered that the clerk of this court certify a copy of this judgment to the register of deeds of Randolph county to the end that the same may be registered in the office of the register of deeds for said county." From this judgment no appeal was taken. The plaintiffs instituted this proceeding for partition, and alleged that they and the defendants are each entitled to one-ninth undivided interest of said land as heirs at law of Nancy Allred. The defendant G. D. Allred says that he is entitled to eight-ninths undivided interest in said land by virtue of the deed from Nancy Allred to himself. He admits that by virtue of the judgment in the case of Willie Allred against himself she is entitled to one-ninth interest therein. The facts in regard to the execution of the deeds and a copy of the judgment are fully set out in the answer. The plaintiffs demurred to the answer for that it appeared upon the face of the complaint that the said deed under which the defendant G. D. Allred claimed had been declared void and canceled. The clerk sustained the demurrer, and directed a sale of the land for partition, to which judgment the defendant excepted, and appealed to the judge. Upon the said appeal the judge of the district reversed the judgment of the clerk and overruled the demurrer, adjudging: "Upon the record now before the court, the court adjudges that Willie Allred and G. Dallas Allred are tenants in common in the lands described in the petition, the said Willie entitled to one-ninth and G. Dallas to eight-ninths, and the judgment of the clerk to this extent is reversed and modified." From this judgment the plaintiffs other than Willie Allred appealed.

Oscar L. Sapp, for appellants.

Robbins & Robbins and Hammer & Spence, for appellees.

CONNOR J.

The deed from Nancy Allred to the defendant G. D. Allred conveyed to him the title to the land in controversy. If she was non compos at the time of its execution, the deed was voidable, not void. "The deed of a person of unsound mind, not under guardianship, conveys the seisin." Odom v. Riddick, 104 N.C. 515, 10 S.E. 609, 7 L. R. A. 118, 17 Am. St. Rep. 686. At her death no estate passed to her heirs at law. They had a right of action, and were entitled, either jointly or severally, to attack the deed in so far as it affected their rights. Only one of them did so. It is alleged, and the demurrer admits, that she "did not assume to sue for or in behalf of any of the other children." As the basis of her right to sue she alleged that she was an heir of Nancy Allred. This was admitted. The only issue submitted to the jury was directed to the mental capacity of the grantor. The facts appearing upon the pleadings before us are that Nancy executed the deed; that Willie brought the action to set it aside so that she might inherit her share of the land conveyed; that she prosecuted her action successfully, and has the fruits of her victory--one- ninth undivided interest in the land. The brothers and sisters seek to avail themselves of the verdict and judgment in that case to vest title in themselves and to estop the defendant G. D. Allred from claiming any right to or title in the land under the deed. They are not parties to the action. The defendant does not seek to use the judgment as an estoppel, or to attack it. He concedes that as against the plaintiff Willie, in respect to her one-ninth, he is estopped. She claims no more. The parties to the action are content to abide its result. When the other plaintiffs, strangers to the action, and, as we shall see, not privies, seek to take title under the judgment, or to estop him from denying that they have title, he simply relies upon the well-established principle that "estoppels must be mutual, and bind only parties and privies. One who is not bound by an estoppel cannot take advantage of it." For this position he relies upon the numerous decisions of this court and the uniform current of authority from the time of Coke to this day. Pearson, C.J., in Griffin v. Richardson, 33 N.C. 439, so declares the law. Also in Falls v. Gamble, 66 N.C. 455; Ray v. Gardner, 82 N.C. 146; Bryan v. Malloy, 90 N.C. 508. In Peebles v. Pate, 90 N.C. 348, it is said: "Every estoppel must be reciprocal. It must bind both parties. A stranger can neither take advantage of it nor be bound by it." Temple v. Williams, 91 N.C. 82. Mr. Starkie says: "When the parties are not the same, one who would not have been prejudiced by the verdict cannot afterwards make use of it, for between him and a party to such verdict the matter is res novo, although his title turn upon the same point." Starkie on Ev. 332. "Judgments and decrees are conclusive evidence of facts only as between parties and privies to the litigation. And in case of former adjudication set up in defense it is no bar unless the parties to the first judgment are the same as those to the second proceeding. On the principle that estoppels must be mutual, no person can take advantage of a former judgment or decree as decisive in his favor of a matter in controversy, unless, being a party or privy thereto, he would have been prejudiced by it had the decision been the other way." Black on Judgments, § 534. We cannot more accurately state the principles underlying the doctrine of estoppel of record than by using the language of Pearson, J., in Armfield v. Moore, 44 N.C. 157: "According to My Lord Coke, an estoppel is that which 'shuts a man's mouth from speaking the truth.' With this forbidding introduction a principle is announced which lies at the foundation of all fair dealing between man and man, and without which it would be impossible to administer law as a system. The harsh words which the very learned commentator upon Littleton uses in giving a definition of this principle are to be attributed to the fact that before his day 'the scholastic learning and subtle disquisition of the Norman lawyers (in the language of Blackstone) had tortured this principle so as to make it the means of great injustice; and the object of My Lord Coke was to denounce the abuse which he says had got to be "a very cunning and curious learning," and "was odious," and thereby restore the principle and make it subserve its true purpose as a plain, practical, fair, and necessary rule of law.' Estoppels must be mutual; that is, if one side is bound, the other must be. It only includes parties and privies, and does not extend to a stranger." Coke, Litt. 252d.

It is well settled that tenants in common are not privies. They do not claim under each other. They may claim their several titles and interests from entirely different sources. In this respect they differ from joint tenants and coparceners. "Tenants in common are they which have lands or tenements in fee simple, fee tail, or for terms of life etc., and they have such lands or tenements by several titles, and not by a joint title; and none of them know of this several, but they ought by law to occupy these lands or tenements in common." Coke, Litt. 292. "It is therefore sufficient description of tenants in common that they are persons who hold by unity of possession." Kent, Com. 367. They may claim by deed, devise, or descent. In either case they are deemed to have several and distinct freeholds; "that being a leading characteristic of tenancy in common." "Each tenant is considered solely or severally seised of his land." Kent, Com. 368. They can in no proper or legal sense be called privies, because it is said: "In the law of estoppels 'privity' signifies merely succession of rights; that is, the devolution in whole or in part of the rights and duties of one person upon another; *** the derivation of rights by one person from and holding in subordination to those of another as in the case of a tenant. No one can be bound by or take advantage of the estoppel of another who does not succeed or hold...