Hill v. Brown

• Decision Date: 12 March 1907
• Citation: 56 S.E. 693,144 N.C. 117
• Court: North Carolina Supreme Court
• Parties: HILL. v. BROWN.

144 N.C. 117

56 S.E. 693

HILL.

v.BROWN.

Supreme Court of North Carolina.

March 12, 1907.

Courts—Precedents—Stare Decisis.

Where a defendant in partition, after final decree therein, acquired an outstanding interest from an owner who had not been a party, and at the time he acquired such interest was entitled, under a decision of the Supreme Court, to set it up against the plaintiff in the partition proceedings, his right to do so was not affected by the subsequent contrary decision of the Supreme Court that a person acquiring such an interest would be estopped to assert it.

Appeal from Superior Court, Duplin County; E. B. Jones, Judge.

Trespass to try title by T. C. Hill against Jonas H. Brown. From a judgment for plaintiff, defendant appeals. Reversed.

H. D. Williams and Murray Allen, for appellant.

Stevens, Beasley & Weeks, for appellee.

BROWN, J. It appears from the case agreed that the land in controversy was partitioned in 1897 by decree of the superior court of Duplin in a proceeding to which this plaintiff and defendant, and all the other owners, were parties, except the children of Pallie Whaley. The final decree confirming the partition was entered March 5, 1897. In August, 1903, defendant Brown acquired title to the share of the Whaley children. It is contended that he is estopped by the principles laid down in Carter v. White, 134 N. C. 466, 46 S. E. 983, 101 Am. St. Rep. 853, from setting up against the plaintiff such outstanding interest so acquired. It is contended by defendant that (1) Carter v. White was first correctly decided, and the subsequent decision is erroneous; (2) a contract valid under a judicial decision in force when the contract is entered into cannot be impaired by a subsequent judicial decision.

In an able and learned argument, Mr. Allen, of counsel for defendant, asks us to overrule the last decision rendered m Carter v. White, 134 N. C. 466, 46 S. E. 983, 101 Am. St. Rep. 853. It is not necessary that we should take that into consideration, as we are with the defendant upon the second contention, so far as it applies to the facts of this case, which are on "all fours" with those stated in Carter v. White. In both cases the defendant in partition proceedings, after final decree therein, acquired an outstanding interest from an owner who was not a party, and attempted to set it up against the plaintiff in such proceeding. When the Carter Case was before this court at August term, 1902, it was held that defendant was not estopped. It is said in the opinion: "So the plaintiff's contention is that, by reason of said decree, defendant is estopped from setting up his interest acquired from Land, notwithstanding Land was not a party to the special proceeding." The superior court held with the plaintiffs, and this court said: "In so holding his honor was in error." When the case was considered again at spring term, 1904, the purport and general scope of the opinion of 1902 was recognized in both the opinion of the court, and the dissenting opinion of the chief justice. Between the promulgation of the two decisions this defendant purchased the outstanding interests of the Whaley children. In so doing, we think, he is protected by the principles of law set forth in the opinion of this court in 131 N. C. 14, 42 S. E. 442, notwithstanding the majority of this court in 1904 took a different view.

We deduce the well-settled principle froma number of authorities that the law of contract enters into the contract itself, and, in the construction, forms a part of it. It is practically a dormant stipulation in the contract, and it must be enforced as a part of it, and as it is construed at the time the contract is made. Napier v. Jones, 47 Ala. 96; Davis v. Montgomery, 51 Ala. 146, 23 Am. Rep. 545; Herndon v. Moore, 18 S. C. 354; Haskett v. Maxey, 134 Ind. 182, 33 N. E. 358, 19 L. R. A. 379. The aunotator says, in commenting on the...