Vandyke v. Farris

• Decision Date: 29 May 1900
• Citation: 36 S.E. 171,126 N.C. 744
• Court: North Carolina Supreme Court
• Parties: VANDYKE. v. FARRIS et al.

126 N.C. 744

36 S.E. 171

VANDYKE.

v.FARRIS et al.

Supreme Court of North Carolina.

May 29, 1900.

PROCESSIONING PROCEEDING—JUDGMENT— SUBSEQUENT EJECTMENT—PLEA IN BAR—EFFECT.

Code, c. 48, as amended (section 1929), provides that any person whose land was processioned to him thereunder should be deemed and adjudged to be the sole owner thereof, and might give such proceeding in evidence in any suit commenced against him for the land. In decisions on these statutes it had been pointed out that this means of conferring title was in derogation of the common law, was attended with grave dangers, and should be strictly construed. Acts 1893, c. 22, repealing the former statutes, authorized the institution of such proceedings to locate boundary lines, but omitted the provision as to the effect of such proceedings on title. Held, that the legislature would be presumed to have intended to avoid the dangers pointed out as existing in the earlier provisions, and hence a processioning proceeding instituted by plaintiff against defendant under Acts 1893, c. 22, could not be pleaded in bar of plaintiffs subsequent ejectment for the lands.

Appeal from superior court, Gaston county; Starbuck, Judge.

Action by J. L. Vandyke against T. C. Farris and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

Webb & Webb, for appellant.

George F. Bason, for appellees.

FAIRCLOTH, C. J. This is an action of ejectment The defendants, after denying the allegations of the complaint, entered a plea in bar of the action, and the case was tried on that plea alone. His honor held that the evidence and judgment relied on in support of the plea were an estoppel against the plaintiff, and the plaintiff appealed. The plea was that in 1893 the plaintiff instituted a processioning proceeding before the clerk against the defendant, to locate the line between plaintiff and defendant, under the act of 1893, c. 22, and that judgment was entered against the plaintiff for costs, from which no appeal was taken. At the trial of the present action it was admitted by the plaintiff that said processioning proceedings and judgment therein were in all respects regular, and in strict compliance with the act of 1893, c. 22. It was admitted by both parties that the question presented is whether, after said processioning proceedings, the plaintiff can bring an action in the superior court to recover the same land. We have to consider this question without any argument or authorities cited by counsel. Do the proceeding before the clerk, and his judgment therein, simply establish a line between the parties, without determining the title to the land on either side of the line? The act of 1893, c. 22, repeals chapter 48 of the Code. That chapter was an innovation on the common-law remedy in settling titles to land, and is therefore to be strictly construed. Several cases came to this court thereunder, but practically nothing was accomplished in any case. The...