Carter v. White

• Citation: 131 N.C. 14,42 S.E. 442
• Court: United States State Supreme Court of North Carolina
• Decision Date: 16 September 1902
• Parties: CARTER et al. v. WHITE et al.

42 S.E. 442

131 N.C. 14

CARTER et al.

v.WHITE et al.

Supreme Court of North Carolina.

Sept. 16, 1902.

EJECTMENT—PARTITION—JUDGMENT—AFTER-ACQUIRED TITLE.

1. In an action of ejectment, in which the only title in issue was that of defendant, he not denying that plaintiffs were tenants in common with him, there was judgment that he owned a certain undivided interest, less than claimed by him, and plaintiffs the balance. In subsequent partition proceedings by them against him, his share was allotted to him in severalty. Held, that such judgment and decree did not prevent his claiming an undivided interest with them under an after-acquired title from one not a party to the action in ejectment or the partition proceedings.

¶ 1. See Judgment, vol. 30, Cent. Dig. § 1233.

Appeal from superior court, Currituck county; Geo. A. Jones, Judge.

Action by J. C. Carter and others against L. R. White and others. Judgment for plaintiffs, and defendants appeal. Reversed.

E. P. Aydlett, for appellants.

Pruden & Pruden and Shepherd & Shepherd, for appellees.

COOK, J. In 1895 the plaintiffs brought an action of ejectment against defendant in the superior court of Currituck county, and alleged in their complaint that they were the owners in fee simple of the land in controversy. Defendant, in his answer, denied that his entry and possession were unlawful and wrongful, but averred that he was the owner in fee of seven seventy-second parts of the land. Upon the trial the jury found for their verdict that the "defendant was entitled to one fifty-fourth part of the whole, and the plaintiffs to the balance thereof, " and thereupon the court rendered judgment "that the defendant owns in fee simple one undivided one fifty-fourth part of the land and the plaintiffs (trustees) the balance of the same." Thereafter, in 1898, the plaintiffs instituted a special proceeding for partition against defendant, and caused the share of defendant to be assigned and allotted to him in severalty under decree of the court. In February, 1899, defendant purchased the interest of one Thomas S. Land in said tract of land. Said Thomas S. Land was not a party to the action, nor to the special proceeding, and it appears from the pleadings and affidavits in this action that he was the owner of an undivided interest in the land as one of the heirs of Jeremiah Land, one of the original grantees, at the time of and before the institution of said action and special proceeding, which he sold and conveyed to defendant on the 1st day of February, 1899. By virtue of his title thus acquired, defendant claims a tenancy in common with the plaintiffs in the entire tract of land, and has entered upon said land, and insists that he has a right to enter thereon equally with plaintiffs, and that such entry is not a trespass, as alleged. Plaintiffs contend that, notwithstanding said Land was not a party to the said action and special proceeding, and while he (Land) would not be debarred from entering upon and claiming his right and interest in the tract of land, if he had any, on account of said judgment and decree, yet the defendant, who has purchased Land's interest, is estopped from claiming any interest thereunder by reason of the judgment...