
    W. A. PINNELL et als. v. J. W. BURROUGHS et al.
    (Filed 11 October, 1916.)
    1. Judgments — Parties—Estoppel.
    Tbe widow of the deceased bad ber dower allotted in tbe lands in controversy, and in proceedings to sell lands of tbe deceased to pay bis debts, regularly held, Lber father, became tbe purchaser of ber reversionary interest, and, again, under proceedings regularly bad, in wbicb tbe present plaintiffs were made parties, bis executor sold tbe lands to make assets to pay bis debts, and B. became tbe purchaser, wbicb sale the court confirmed and ordered tbe executor to make a deed to him, which was accordingly done. B. was tbe second husband of tbe widow, now deceased, by wbicb marriage children were born, tbe defendants in tbe present action, tbe plaintiffs being children by tbe first marriage, and claiming as heirs at law of their father. Held, the plaintiffs are estopped to claim, title to the lands by the judgment in the second proceedings to sell them to make assets, to which they were parties.
    2. Same — Lost Records — Evidence — Judicial Sales — Recitations in Deed — Prima Facie Evidence — Presumptions.
    Where there is evidence tending to show that the courthouse of the county was rebuilt, and its records during the time had been placed in an attorney’s office near by, and many of them were not recorded; that due and diligent search had been made for the records and proceedings in the present case in the courthouse and elsewhere, the recitals in the deed from an executor in proceedings to sell lands to make assets to pay the debts of the decedent became prima facie evidence of the existence and validity of the decree, judgment, order, or other record upon which the same purports to have been founded, and permits the conclusion of the regularity of the proceedings, the presence of all proper parties and the binding force of the decree specified and referred to, unless it should in some portion of the record more directly apposite affirmatively appear to the contrary. In this case the record proper showed only an entry of report of sale, purchaser, price and payment, with recommendation of confirmation.
    B. Judgments — Parties—Estoppel—Judicial Sales — Parties—Presumptions.
    A final decree in proceedings to sell lands to make assets in this case against W. A. P. et als., is held to conclude a granddaughter of the testator, both under his will and as his heir at law, it appearing that two of testator’s daughters married the same person, and that children of both the first and second marriage were necessarily the testator’s grandchildren, and those of each marriage were equally necessary parties to the proceedings.
    Civil actioN to recover a tract of land, tried before Stacy, Jand a jury, at June Term, 1916, of 'W’ae.RBN.
    The evidence baving been introduced, on motion made in apt time, there was judgment of nonsuit, and plaintiff excepted and appealed.
    The cause was before the Court on a former appeal, and will be found reported in 168 N. 0., 315.
    
      T. M. Pittman and W. E. Daniel for plaintiff.
    
    
      John H. Kerr and A. G. and J. P. Zollicoffer for defendant.
    
   Hoias, J.

The facts contained in the former case on appeal are all included in this record, amplified and extended by additional testimony introduced on the present hearing, and from these facts it appears that the land in question was formerly owned by Jackson Pinnell, who died in said county in 1865, leaving him surviving his widow, Lucy ~W. Pinnell, and present plaintiffs, ~W. A. J. Pinnell, E. L. Pinnell, and Lucy Andrews, his children and heirs at law; that some time after the death of Jackson Pinnell his widow intermarried with John H. Burroughs, and they had three children, the present defendants, who resist recovery, claiming to own the land as heirs at law of their father, now deceased; that soon after the death of Jackson Pinnell his widow, having qualified as the administratrix, filed a petition to sell his land to make assets. ■Decree was had, the land sold, report made, and sale confirmed. At said sale, the widow’s dower having in the meantime been allotted to include the land now in dispute, the reversion in said tract was purchased by Willis Lloyd, father of Mrs. Pinnell, at the price of $856.80, and note and bond for purchase price executed by him with James E. Drake as surety. It does not affirmatively appear that this bond has ever been paid in full. A return of Mrs. Pinnell, administratrix, was offered in evidence, containing an item of a small amount as received on the Willis Lloyd note, no other testimony on that question being offered.

The record shows that decree for sale was had, November Term, 1866. Sale took place December, 1866. Report made and confirmed in August, 1867, or soon thereafter.

It further appeared that Willis Lloyd died in 1869, having made his last will and testament, appointing Henry B. Hunter his executor, and, in proving the will, it appeared that the heirs at law of Willis Lloyd and owners of his property under the will included, among others, the present plaintiffs, W. A. J. Pinnell, R. L. Pinnell, and Lucy L. Pinnell (now Mrs. Andrews). The docket of probate court of Warren County was then offered in evidence, containing the following:

NORTH CAROLINA-WARREN COUNTY.

In the Probate Court.

Henry B. Hunter, executor of Willis Lloyd, respectfully showeth to the court that in accordance with the order of sale to him directed by this honorable court he did, on 14 May, 1870, after the requisite advertisement, sell at the courthouse door in the town of Warrenton the land mentioned in said order, when John H. Burroughs became the last and best bidder in the sum of $1,000, and has paid the amount so bid. He is of the opinion that the price is as much as the land is worth, and respectfully recommends that the sale be confirmed and that he be directed to execute a deed to the purchaser.

H. B. Hunter,

Executor of Willis Lloyd, Deceased.

There was also offered in evidence a deed from H. B. Hunter, executor of Willis Lloyd, conveying the tract of land in dispute to John H. Burroughs, father of defendants, and now deceased, containing recitals as follows:

“Tbis indenture made and entered into on tbis tbe 20th'day of September, A. D. 1810, between Henry B. Hunter, executor of Willis Lloyd, party of tbe first part, and John H. Burroughs, party of tbe second part, albof tbe county of Warren and State of North Carolina, witnessed : that whereas tbe said party of tbe first part was by a decree of tbe Superior Court of tbe said county of Warren, made in a certain cause wherein tbe said party of tbe first part was plaintiff and Willis A. J. Pinnell, an infant under 21 years old, and others, were defendants, ordered to sell for tbe purpose of paying tbe debts of tbe said Willis Lloyd, which his personal property was insufficient to discharge, certain real estate of tbe said Willis Lloyd, to wit: tbe reversion after tbe life estate of Mrs. Lucy W. Burroughs in a tract of land of 238 acres, situate in said county of Warren on tbe waters of Rich Neck Creek, adjoining tbe lands of Jacob Parker, Henry Williams, and others, tbe same being tbe tract which was assigned to tbe said Lucy W. Burroughs, then Lucy W. Burroughs, for dower in tbe lands in tbe late Jackson Pinnell; and whereas tbe said party of tbe first part, im pursuance of said decree, did on 14 May, 1870, sell said real estate at auction at tbe courthouse in tbe town of Warrenton, when tbe said party of tbe second part became tbe purchaser in tbe sum of $1,000, and paid tbe whole of tbe purchase money in cash; and whereas, upon tbe report of said sale to the said court, tbe same was in all respects confirmed, and tbe said party of tbe first part was, by tbe final decree in tbe said cause, ordered to execute a deed for tbe said real estate to tbe said party of tbe second part,” etc.

It was also shown in evidence that a few years ago tbe courthouse of Warren County was rebuilt, and that, during its construction, boxes containing some of tbe former records and dockets of proceedings of tbe court were placed in an attorney’s office near by, many of them never having been recorded; and it was proved that due and diligent search bad been made for tbe record and proceedings in tbis present ease of Hunter v. Pinnell et al. in tbe courthouse and elsewhere, and that said papers could not be found. It was also shown that two of plaintiffs, R. L. Pinnell and Lucy Andrews, were children of Jackson Pinnell by Lucy, bis second wife, and W. A. Pinnell, tbe other plaintiff, was a child of tbe said Jackson by a former wife, and she was a sister of Lucy; and tbis last having died in 1914, plaintiffs sue and claim the land as children and heirs at law of Jackson Pinnell, tbe former owner; and defendants resist recovery, claiming ownership as children and heirs of their deceased father, John H. Burroughs.

On these, tbe controlling facts in reference to tbis title, tbe Court is of opinion that the judgment of nonsuit-is clearly correct, and this without refei’ence to any rights that may or may not exist in plaintiffs, from perusal of tbe first proceedings, but from tbe estoppel created bj tbe judgment in tbe second record, tbat of Henry B. Hunter, executor of Willis Lloyd, deceased, v. W. A. J. Pinnell and others, and in wbicb, by decree of a court having jurisdiction of tbe cause and parties interested, including tbe present plaintiffs, tbe land now in question was sold as tbe property of the testator, Willis Lloyd. True, in this last proceeding tbe only entry appearing upon tbe record proper is a report of sale and purchase by John H. Burroughs at tbe price of $1,000 and payment of tbe money by him, with a recommendation tbat tbe sale be confirmed; but, defendants having first laid the foundation by satisfactory proof tbat due and diligent search bad been made at tbe proper places for tbe papers and proceedings in the cause, and tbat same could nowhere be found (Rackley v. Roberts, 147 N. C., 201; Barefoot v. Musselwhite, 153 N. C., 208), tbe recitals in tbe deed to John H. Burroughs became pertinent evidence, and, by force of the statute, became prima facie evidence of tbe existence and validity of tbe decree, judgment, order or other record upon wbicb tbe same purports to be founded, Revisal, sec. 342; and, under various decisions in wbicb this statute has been construed and applied, it permits tbe conclusion of tbe regularity of tbe proceedings, the presence of all proper parties, and tbe binding force of tbe decree specified and referred to, unless it should in some portion of the record more directly apposite affirmatively appear tbat the court bad not acquired jurisdiction of tbe parties or that the decree was entirely beyond tbe scope of tbe issues involved in the cause. Pinnell v. Burroughs, 168 N. C., 315; Sutton v. Jenkins, 147 N. C., 11; Morris v. House, 125 N. C., 550; Sumner v. Sessoms, 94 N. C., pp. 371-376; Hare v. Holloman, 94 N. C., pp. 14-18; Johnson v. Whilden, 171 N. C., 153.

In the case then referred to of Hunter, executor of Willis Lloyd, v. W. A. J. Pinnell et al., we have tbe record entry showing tbe report of sale of tbe land here in dispute, tbat same was bought by John H. Burroughs and purchase price paid; due and proper search for the papers and failure to find tbe same, and recitals in tbe deed showing a cause properly constituted; tbe presence of tbe proper parties; decree for sale to make assets to pay debts of the testator; report of sale, showing payment and purchase price; confirmation of sale and order to make title, and tbe deed conveying such title to defendants.

It was suggested for plaintiff tbat while tbe evidence shows tbat two of tbe plaintiffs are grandchildren of Willis Lloyd, tbe other plaintiff, being a child of tbe first wife, may not be so, and, therefore, as we understood tbe argument, there would arise no presumption tbat this first child' was a grandchild of Willis Lloyd, and, therefore, to be included in tbe terms of tbe recital as to parties, wherein Henry B. Hunter, executor of Willis Lloyd, is plaintiff and W. A. J. Pinnell et al. are defendants; but to our minds the position is without merit. Not only does tbe record, in the application for proof of will, show that these present plaintiffs were entitled to these lands under the terms of the will, but the proof shows that the wives of Jackson Pinnell were sisters, presumably full sisters, and both the. daughters of the testator, and, if it were otherwise, if, as plaintiff contends, the record in the first case of Lucy W. Pinnell, admx., v. the heirs at law of Jackson Pinnell, should disclose that the legal title was in plaintiffs as heirs at law of Jackson Pinnell, that record also shows that "Willis Lloyd, on confirmation of sale to him, had an equity in the property, and that, in any subsequent proceedings to sell this as his, the children and heirs at law of Jackson Pinnell would have been proper parties and properly included in the term, W. A. J. Pinnell et al.

The facts in evidence, then, are stated, showing the existence of a cause properly constituted, in a court having jurisdiction of the parties and subject-matter, in which the land in dispute was sold as the property of Willis Lloyd. If the present plaintiffs, who were properly parties to that record, had any title superior to that of Willis Lloyd, they should have set it forth, and not having done so, they are now concluded on the issue as to Willis Lloyd’s title. This was fully adverted to and the case practically decided on the former appeal, in which Associate Justice Walker, speaking to this question, said: “If they were parties to the latter suit, they are bound and concluded by the judgment rendered therein, and it can make no difference whether they acquired title to the land as the heirs of Jackson Pinnell or as heirs of Willis Lloyd, as they are estopped by the judgment without regard to the source from which they may have derived title. If they had any other right or title to the land at the time they were called upon to answer the complaint, they should have disclosed it, and pleaded it, and having failed to do so, they are concluded by the judgment as to the title, which was alleged to have been in Willis Lloyd, and will not be heard to aver against it in this action. Armfield v. Moore, 44 N. C., 157; Carter v. White, 134 N. C., 474; Gregory v. Pinnix, 158 N. C., 147. The Court, in Owens v. Needham, 160 N. C., 381, quoting from and approving Coltrane v. Laughlin, 157 N. C., 287, held it to be a well recognized doctrine here and elsewhere that ‘when a court, having jurisdiction of a cause and the parties, renders judgment therein, it estops the parties and their privies as to all issuable matter contained in the pleadings, and though not issuable in the technical sense, it concludes, among other things, as to all matters within the scope of the pleadings which are material and relevant and were in fact investigated and determined on the hearing.’ ”

We find no error in the record, and the judgment of nonsuit is

Affirmed.  