Carter v. White

• Citation: 134 N.C. 466,46 S.E. 983
• Parties: CARTER et al. v. WHITE.
• Decision Date: 22 March 1904
• Court: North Carolina Supreme Court

46 S.E. 983
134 N.C. 466

CARTER et al.
v.
WHITE.

Supreme Court of North Carolina.

March 22, 1904.

LAW OP THE CASE—TRESPASS—PARTITION— AFTER-ACQUIRED TITLE—ESTOPPEL.

1. The decision on appeal from an order continuing to the hearing in an action for trespass an injunction restraining trespass, as to the effect of a judgment and decree in another action and subsequent partition proceedings, is not the law of the case, so as to be conclusive on appeal from the final judgment in the trespass suit.

2. In trespass plaintiffs alleged they were the owners in fee simple and in the possession of the land. Defendant denied the allegation of ownership, and alleged he was the owner of a certain undivided interest. The jury found that defendant was entitled to 1/54 of the land and plaintiff's to the balance, and there was judgment in accordance therewith. In subsequent partition proceedings the land was accordingly divided between the parties. Held, that defendant in an action for subsequently trespassing on the part partitioned to plaintiffs was estopped from claiming an undivided interest in such part under a deed subsequent to the partition, from one having an interest therein at the time of the partition, but who was not a party to the proceedings therefor.

Clark, C. J., dissenting.

Appeal from Superior Court Currituck County; Councill, Judge.

Action by J. C. Carter and others against Leon White. Judgment for defendant. Plaintiffs appeal. Reversed.

See 42 S. E. 442.

The plaintiffs, trustees of Swan Island Club, prosecute this action against the defendant for an alleged trespass upon the land described in the complaint. They demand judgment for damages, and other relief. The defendant, in his answer, denies the ownership as alleged, admits an entry upon the land, and sets up title to an undivided interest therein. Appropriate issues were framed and submitted to the jury. The plaintiffs introduced the record of a civil action lately pending and determined in the superior court of Currituck county, wherein the present plaintiffs James C. Carter and William Minot, Jr., together with W. H. Forbes, trustees of Swan Island Club, were

[46 S.E. 984]

parties plaintiff, and the present defendant was party defendant It appears from an inspection of said record that the plaintiffs alleged that they were the owners in fee and in possession of the land described in the complaint, and that the defendant had committed acts of trespass thereon. The defendant, in his answer, denied that the plaintiffs were owners, and alleged that he was the owner in fee of an undivided interest in the land. He admitted the entry, and alleged that the same was lawful. The cause came on for trial at fall term, 1896, and the following issue was submitted to the jury: "To what part of the land described in the complaint are the plaintiffs, trustees, and the defendant, respectively, entitled?" and the jury responded, "The defendant to one fifty-fourth part of the whole, and the plaintiffs to the balance thereof." Judgment was rendered, in accordance with the verdict, "that the defendant owns in fee simple one undivided fifty-fourth part of said land, and the plaintiffs, trustees, the balance of the same." A full description of the land is set out in the judgment Thereafter the plaintiffs in said action instituted a special proceeding, in which the defendant therein, being the defendant herein, was party defendant for the purpose of having partition of the land. In the petition in said proceedings the plaintiffs alleged that they were tenants in common with the defendant of the land described therein, being the same land described in the complaint in the civil action, and setting forth the interest of the parties. The defendant filed no answer, and the court rendered judgment directing partition, appointing commissioners for that purpose. The commissioners made partition, allotting to the defendant by metes and bounds one fifty-fourth part in value of the land, and to the plaintiffs the balance thereof; and on September 23, 1898, their report was duly confirmed by the court, and the parties adjudged to hold the portions allotted to them by the commissioners. Thereupon the defendant introduced a grant for the locus in quo from the state to John Williams, Thomas Williams, and Jeremiah Land; also a deed from Thomas Land to himself, bearing date February 1, 1S99. The defendant showed that Thomas was one of the heirs at law of Jeremiah Land, one of the persons named in the grant. The record also states "that it is admitted the defendant is a tenant in common with them to the extent of the interest conveyed to him under the deed from Thomas Land of February 1, 1899, unless the defendant is estopped by the proceedings set up in this action." It was conceded that the present plaintiffs succeeded to the title of the plaintiffs in said action and proceeding. The plaintiffs moved for judgment, the motion was denied, and the plaintiffs excepted. The court instructed the jury that, if they found from the evidence that Jeremiah Land was one of the original grantees from the state to the land in controversy, that he died seised of the same, and that Thomas Land, from whom the defendant bought February 1, 1899, was not a party to the proceedings introduced in evidence, the defendant was not estopped. The plaintiffs excepted, and from a judgment for the defendant appealed.

Pruden & Pruden and Shepherd & Shepherd, for appellants.

E. F. Aydlett, for appellee.

CONNOR, J. (after stating the case). The plaintiffs contend that the defendant is estopped from asserting title to any portion of or interest in the land in controversy, first, by the verdict and judgment in the civil action rendered at fall term, 1896; and, second, by the final judgment in the special proceedings for partition of September 23, 1S98. The defendant admits that he is estopped to assert any title which he owned at the time of the institution of said action and of said special proceeding, or which he has derived from the parties to said action, or any person claiming under said parties, but insists that he is not estopped to assert title derived from Thomas Land, who claims under Jeremiah Land, neither of whom were parties to, or in any manner bound by, the judgment in said action or proceeding. This is the sole question presented upon this record.

Before proceeding to discuss the authorities relied on by counsel, it will be well to note the disposition of this case made by this court at August term, 1902. 131 N. C. 14, 42 S. E. 442. The case, as then presented, was an appeal from an order continuing to the hearing an injunction restraining the defendant from trespassing upon the land pending litigation. The court decided that the judge was in error in making said order. It is not contended that the judgment then rendered was final, or worked an estoppel upon the plaintiffs to further prosecute this action. The appeal was not from any "judgment, " but from a "judicial order, " as provided in section 548 of the Code. The term "order" is sometimes applied to an interlocutory judgment or decree. Indeed, under the Codes of the several states interlocutory judgments and decrees are no longer recognized, and "orders" have been substituted therefor. 17 Am. & Eng. Enc. 763. The defendant, however, says...