Mcmildian v. Teachey

• Decision Date: 21 October 1914
• Docket Number: (No. 214.)
• Parties: McMILDIAN. v. TEACHEY.
• Court: North Carolina Supreme Court

83 S.E. 175

167 N.C. 88

McMILDIAN.

v.TEACHEY.

(No. 214.)

Supreme Court of North Carolina.

Oct. 21, 1914.

Mortgages (§ 497*) — Foreclosure — Judgment—Conclusiveness.

Where judgment of foreclosure was rendered by default and unappealed from, and grantee of purchaser at foreclosure sues for possession, the mortgagor cannot set up that the land in controversy was included in the mortgage by mistake.

[Ed. Note.—For other cases, see Mortgages, Cent. Dig. §§ 1469, 1471-1473; Dec. Dig. § 497.^*]

Appeal from Superior Court, Duplin County; Whedbee, Judge.

Action by Jno. C. McMillian against E. W. Teachey. From a judgment for plaintiff, defendant appeals. Affirmed.

G. R. Ward, of Wallace, and H. D. Williams, of Kenansville, for appellant.

Stevens & Beasley, of Warsaw, for appellee.

HOKE, J. On the hearing it was properly made to appear, from a perusal of the pleadings and the admission of the parties, made in open court on the trial, that plaintiff claimed the land as grantee under a deed from J. R. Bell, who purchased the same at a judicial sale, under decree in case of Brad-shaw, Ex'r, v. E. W. Teachey and Frank Brice. That action was against present defendant and said Brice, to foreclose a mortgage for the purchase money and establish a lien on the land in controversy, and the land was fully described in the pleadings in that cause, and same description was in report of commissioner who made the sale and in the deed to the purchaser, and in conveyance from said purchaser to the present defendant. There was judgment by default in the Bradshaw case; no defense thereto having been made or attempted. It was admitted on the present trial:

"That E. W. Teachey, defendant in the present action, is the same E. W. Teachey who was one of the defendants in suit of Bradshaw, Ex'r, v. Teachey; that he was in present possession of the land in controversy, and that the plaintiff claims under the deed from J. R. Bell and by mesne conveyance from court commissioner in the case of Bradshaw, Ex'r, etc., and that the land run and located according to the description set out in complaint in that case, and described in the judgment therein, and in the commissioner's deed to Bell, and in the deed from Bell to the present plaintiff, includes the land in controversy and is the same land described in the complaint in the present action."

Upon these facts and admissions, we think his honor correctly held that plaintiff is the owner and entitled to the possession of the property, and that defendant, E. W. Teachey, is estopped from showing that the boundaries set out in the present case and in that of Bradshaw did not correctly describe the land embraced in the mortgage, but that the same produced a wrongful interference, to the extent of eight or ten acres, with the boundaries of an adjoining tract which plaintiff now owns, and did at the time the Bradshaw proceedings were instituted, and decree therein was entered. It has been repeatedly decided with us that an estoppel by judgment will bind parties and privies "as to all issuable matters presented by the pleadings, and, though not issuable in the technical sense, it concludes, among other things, as to all matters within the scope of the pleading which are material and relevant and were, in fact, investigated and determined on the hearing." Ferebee v. Sawyer, 83 S. E. 17, at the present term; In re W^Till of Thomas F. Floyd, 161 N. C. 557, 77 S. E. 955; Coltrane v. Laughlin, 157 N. C. 282, 72 S. E. 961; Bunker v....