Baugert v. Blades

• Decision Date: 11 November 1895
• Citation: 117 N.C. 221,23 S.E. 179
• Parties: BAUGERT v. BLADES et al.
• Court: North Carolina Supreme Court

23 S.E. 179

117 N.C. 221

BAUGERT

v.BLADES et al.

Supreme Court of North Carolina.

Nov. 11, 1895.

Res Judicata.

Where each of two defendants claimed title in himself in an action against them to recover a tract of land, and it was adjudged that one defendant was the owner of a specified portion, and the other defendant of the remaining portion, the judgment is res judicata as between defendants themselves and those claiming under them.

Appeal from superior court, Jones county; Hoke, Judge.

Action for trespass by C. A. Baugert against William B. Blades and another. Defendants had judgment, and plaintiff appeals. Affirmed.

H. C. Whitehurst, for appellant.

W. W. Clark and P. M. Pearsall, for appellees.

FAIRCLOTH, C. J. James McDaniel, Sr., devised certain lands, of which the locus in quo is a part, to his son Starkey, in fee, defeasible in the event that the devisee should die leaving no lawful heir or issue surviving him, in which event the lands should be equally divided between the devisor's surviving sons. It was also declared in the will that, if the son Starkey should desire to sell the lands and mills, the five or surviving sons should have the offer of purchase, at a price to be fixed by valuation if they could not agree, should they be disposed to do so. In McDaniel v. McDaniel, 5 Jones, Eq. 351, which controls the present action, the devisee asked for a construction of the will, alleging that the five brothers would neither buy the lands nor waive their rights as an incumbrance on the power of the devisees to sell. In a learned opinion it was adjudged that the five or surviving brothers should be put to their election, under the direction of the court, either to take the land in the manner prescribed, or to decline it. What were the rights of the purchaser at the sheriff's sale, and his assignees, and of those under the several conveyances from Starkey McDaniel, are questions not now before the court. Each party claims under and through said Starkey, and the question turns upon the question of estoppel, arising out of the judgment set out In the records, and rendered at fall term, 1883, in which Starkey McDaniel was plaintiff and E. R. Page, Lewis M. Pollock, and C. M. Pollock were defendants. The plain-tiff claimed title in fee, and alleged fraud in his conveyance to James McDaniel, and demanded that the sale through the sheriff be declared a trust for his benefit, and that he recover the land from said E. R. Page and Lewis M. Pollock, said Page being the party under whom the plaintiff claims title by virtue of a judgment and commissioner's sale in 1888. The defendants Page and L. M. Pollock answered separately, denying the main allegations...