Southern Distributing Co. v. Carraway

• Decision Date: 26 September 1928
• Docket Number: 179.
• Citation: 144 S.E. 535,196 N.C. 58
• Parties: SOUTHERN DISTRIBUTING CO. v. CARRAWAY et al.
• Court: North Carolina Supreme Court

144 S.E. 535

196 N.C. 58

SOUTHERN DISTRIBUTING CO. v. CARRAWAY et al.

No. 179.

Supreme Court of North Carolina

September 26, 1928

Appeal from Superior Court, Greene County; Daniels, Judge.

Action by the Southern Distributing Company against Willie G Carraway and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Plaintiff held estopped from setting aside deed by former judgment holding property of husband and wife was not liable to execution under plaintiff's judgment and by wife's discharge in bankruptcy.

Civil action to set aside certain deeds as well as deeds of trust and to have judgment held by plaintiff declared a prior lien on the lands described in said instruments.

The essential facts are as follows:

(1) At the November term, 1923, Greene superior court, the plaintiff herein, Southern Distributing Company, Inc. procured a judgment against "Emma R. Carraway and Willie G. Carraway, trading as East Carolina Supply Company, and Emma R. Carraway, Henry T. Carraway, and Willie G. Carraway, individually," for $7,894.59, with interest and costs, the same having been entered by consent following a conference between the parties.

(2) Execution was issued on this judgment, and the question arose, on exceptions filed by the plaintiff to the return of the appraisers appointed to allot and value the homestead of the defendants therein, as to whether a house and lot situate in the town of Snow Hill was subject to execution under said judgment; it being alleged by the plaintiff herein, the Southern Distributing Company, Inc. "that said house and lot was owned by Henry T Carraway and Willie G. Carraway, husband and wife, as tenants by the entirety, under and by virtue of a deed executed by W. T. Carraway to Henry T. Carraway and wife, Willie G. Carraway."

(3) It was held in said proceeding, as reported in 189 N.C. 420, 127 S.E. 427, that the house and lot in question, alleged by the plaintiff, admitted by the defendants, and found by the court, to be vested in Henry T. Carraway and wife, Willie G. Carraway, as tenants by the entirety under the deed now sought to be set aside, could not be sold under execution to satisfy the judgment rendered therein.

(4) Thereafter, in June, 1925, Willie G. Carraway filed a voluntary petition in bankruptcy, listed the plaintiff's judgment as one of her liabilities, of which the plaintiff was lawfully notified, and on September 7, 1925, the said Willie G. Carraway duly received her discharge in bankruptcy and was released from any further liability on account of plaintiff's judgment.

(5) Later, in 1925 and 1926, two deeds of trust, covering said premises, were executed by Henry T. Carraway and wife, Willie G. Carraway, one to secure a loan of $2,000 from the Jefferson Standard Life Insurance Company, and the other to secure a loan of $300 from the National Bank of Granville County.

(6) This suit, instituted since the above proceedings and transactions, is brought by plaintiff to have the entirety deed, above mentioned, set aside as void, and Willie G. Carraway declared the sole owner of said property, and the plaintiff's judgment decreed a prior lien over the deeds of trust held by the defendants insurance company and national bank.

(7) Several defenses were interposed, one upon the ground of res judicata or estoppel by judgment.

From a judgment holding that Henry T. Carraway and wife, Willie G. Carraway, are owners of the locus in quo as tenants by the entirety under the deed in question, and that the discharge in bankruptcy, above mentioned, is a bar to plaintiff's suit, the plaintiff appeals, assigning errors.

John G. Anderson, of Snow Hill, and Walter G. Sheppard, of Farmville, for appellant.

George M. Lindsay and J. Paul Frizzelle, both of Snow Hill, for appellees.

STACY C.J.

Without considering all the grounds upon which the judgment is based, as it is unnecessary to do so, we think the defendants' plea of res judicata, or estoppel, is valid. A claim made or position taken in a former action or judicial proceeding estops the party making such claim to take a conflicting position or to make an inconsistent claim in a subsequent action or judicial proceeding to the prejudice of his adversary, where the parties are the same and the same questions are involved. 16 Cyc. 799. Defining estoppel by judgment, Pearson, J., in Armfield v. Moore, 44 N.C. 157, says:

"The meaning of which is that, when a fact has been agreed on, or decided in a court of record, neither of the parties shall be allowed to call it in question, and have it tried over again at any time thereafter, so long as the judgment or decree stands unreversed. *** In other words, *** his mouth is shut, and he shall not say that is not true which he had before in a

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