Tyler v. Capehart

• Decision Date: 17 October 1899
• Citation: 34 S.E. 108,126 N.C. 64
• Parties: TYLER et al. v. CAPEHART et al.
• Court: North Carolina Supreme Court

34 S.E. 108

126 N.C. 64

TYLER et al.

v.CAPEHART et al.

Supreme Court of North Carolina.

Oct. 17, 1899.

JUDGMENT—RES JUDICATA—MATTERS INVOLVED.

In an action to compel a reconveyance of land conveyed to defendant in trust to reconvey when he had sold enough timber off the land to satisfy his claims against the grantor, it is optional with plaintiff to join a cause of action for surplus timber sold by defendant; and hence, where he neglected to do so, the judgment for reconveyance is not a bar to a subsequent action for the value of the surplus timber sold.

Appeal from superior court, Bertie county; Hoke, Judge.

Action by Martha A. Tyler and others, infants, by next friend, John E. Tyler, against Leroy Capehart and others, executors of W. J. Capehart, deceased. A plea of former adjudication was overruled, and defendants appeal. No error.

F. D. Winston, for appellants.

R. B. Peebles, for appellees.

CLARK, J. The plaintiffs brought a former action against the defendants, alleging a conveyance of a certain tract of land to the defendants' testator in parol trust to reconvey when he had sold timber off the land to the amount of $1,177, due said trustee; and that he "had sold sufficient timber from the land to pay said debt, " and asking a reconveyance. This was not contested, and a reconveyance was, by consent, decreed in that action. The plaintiffs in this action allege that the value of the timber sold from the land by the defendants' testator while such trustee was $3,600, and seek to recover the surplus above $1,170. The defendants set up the plea of res judicata. The present cause of action might have been set up as a second cause of action in the first proceeding. But joining it was optional with the plaintiffs. They were not compelled to do so. Gregory v. Hobbs, 93 N. C. 1; Lumber Co. v. Wallace, Id. 26; Code, § 267. The allegation in the former action was that the defendants' testator had received from sale of the timber "sufficient" to pay off the trust debt, but whether he had received any, and, if so, what, amount over and above the $1,177, which entitled the plaintiffs to adecree for reconveyance, was not actually litigated, and was not "such matter as was necessarily implied therein"; which is the test laid down in Williams v. Clouse, 91 N. C. 322; Wagon Co. v. Byrd, 119 N. C. 460, 26 S. E. 144. In the latter case no issue as to J. O. Martin was submitted, but he had filed his answer, in which he denied the plaintiff's title, and claimed to be sole owner. The issue thus raised by the pleadings "was, therefore, in litigation, and it was incumbent upon Martin to tender the proper issue, and to support it by proof, " and, as he failed to do so, it was held that the judgment decreeing title in the plaintiff was an estoppel on Martin. "Not having spoken when he should have been heard, he should not be heard when he should be silent." The appellants, who rely upon Wagon Co. v. Byrd, supra, place stress upon the expression therein quoted from 1 Herm. Estop. §§ 122, 123, that a judgment is an estoppel, and final, "not only as to the matter actually determined, but as to every other...