Tuttle v. Harrill

• Decision Date: 31 October 1881
• Citation: 85 N.C. 456
• Court: North Carolina Supreme Court
• Parties: J. W. TUTTLE and an other v. R. M. HARRILL.

85 N.C. 456

J. W. TUTTLE and an other

v.R. M. HARRILL.

Supreme Court of North Carolina.

October Term, 1881.

CIVIL ACTION tried at Fall Term, 1880, of RUTHERFORD Superior Court, before Seymour, J.

This action was brought to enforce the specific performance of a contract for the purchase of land alleged to have been entered into between the plaintiff Tuttle and the defendant, and for the possession of the same land.

The action was originally brought in the name of the plaintiff Tuttle alone, the plaintiff Logan being entered as his attorney of record. During the progress of the cause a motion was made at the instance of the plaintiff Tuttle to dismiss the action, the attorney who made the motion producing a power of attorney from him authorizing the same to be done, and thereupon the plaintiff Logan filed an affidavit claiming to be the owner, and to have purchased the land under execution against his co-plaintiff, and was allowed to become a party plaintiff. In the complaint it is alleged, without giving any date, that the plaintiff Tuttle purchased of the defendant a tract of land known as a part of the Achilles Baker tract, and containing eighty-six acres, for which he paid the purchase money in full and took a written assignment of his interest with a promise to convey the same in fee, which written assignment has been lost. That the defendant having gotten the possession of the land retains the same, and though requested to make plaintiff a deed, refuses to do so. The relief asked is that the defendant may be adjudged to make the plaintiff a deed, and deliver the possession of the land, and for damages for waste and occupation.

The defendant in his answer says that the plaintiff Tuttle did not purchase the land mentioned in the complaint, but that in the year 1860 the defendant did agree with the plaintiff Tuttle to exchange lands, and to let him have the 86 acre tract mentioned in the complaint for another which he owned adjoining it. This agreement however was by parol, and was afterwards revoked by mutual consent, without anything being paid, or done under it. Subsequently a second and different agreement was made between the same parties, also by parol, which the plaintiff Tuttle has failed to comply with, and as to this last agreement the plaintiff pleads the statute of frauds.

For a second defence, the defendant alleges that the same matters of fact alleged in the complaint and relating to the same land, had theretofore been tried and adjudicated between these same parties in interest at fall term, 1873, of McDowell superior court, the defendant Harrill being then the plaintiff and Logan the defendant, against whom there was a verdict and a judgment. Also that the same matters of fact and relating to the same land had been adjudicated and determined in still another action tried at spring term, 1878, of Rutherford superior court, wherein the said Tuttle and Logan were plaintiffs and the said Harrill defendant, and in which there was a verdict and a judgment in his favor. In the action last named there was an issue submitted and found by the jury that the matters of fact then alleged had been tried and determined in the action before referred to as having been tried in McDowell superior court. The defendant pleads the estoppel upon the plaintiffs, one or both, growing out of the verdicts and judgments in said actions.

On the trial in the court below, the defendant put in evidence a transcript of the record of the superior court of McDowell county, in an action wherein the present defendant Harrill was plaintiff and the said Logan was defendant, and in which all the issues were found for the then plaintiff, now defendant.

This action begun in the court of Rutherford county, but was removed, by consent of the parties, to McDowell county for trial. In his complaint filed in the action, the plaintiff (now the defendant) alleged that he was the owner in fee of a tract of land containing 86 acres (describing it as is done in the present action) of which the defendant had possession, claiming to have the title thereto, and refused to surrender the same, and judgment asked that he recover the land and for rents, &c.

The defendant Logan by his answer denied the title of the plaintiff to the land, and averred that any claim which he might pretend to under Tuttle (his co-plaintiff in the present action) was fraudulent and void. That Logan himself had the title derived by deed from the sheriff of Rutherford county under sale made by virtue of two executions against the said Tuttle--one in favor of L. Lineberger & Co., and the other in favor of one W. H. Bostick. The record in this action showed the final judgment to be in favor of the then plaintiff, that he recover possession of the land, &c.

The defendant also offered the record of an action tried at spring term, 1878, of the superior court of Rutherford, in which the present plaintiffs, Tuttle and Logan, were the parties plaintiff, and said Harrill defendant, and by the complaint in which it was alleged that the defendant being seized of a certain tract of...