
    CARTER v. WHITE.
    (Filed March 22, 1904).
    1. FORMER ADJUDICATION — Trespass—Injunction—Judgment—The Code, sec. 5J¡8.
    
    The decision on appeal from an order continuing to the hearing in an action for trespass an injunction restraining trespass, as to the effect of a judgment and decree in another action and subsequent partition proceedings, is not the law of the case, so as to be conclusive on appeal from the final judgment in the trespass suit.
    2. ESTOPPEL — Judgment—Partition.
    A judgment in a partition proceeding determining the respective interests of parties thereto is binding on said parties as against an after-acquired title.
    Clash, C. J., dissenting.
    ActioN by I. C. Carter and others against L. R. White, heard by Judge W. B. Council and a jury, at September Term, 1903, of the Superior Court of Cubeituce: County.
    
      Tbe plaintiffs, trustees of Swan Island Olub, prosecute this action against tbe defendant for an alleged trespass upon tbe land described in tbe complaint. They demand judgment for damages and other relief. Tbe defendant in bis answer denies tbe ownership as alleged, admits an entry upon the land and sets up title to an undivided interest therein. Appropriate issues were framed and submitted to tbe jury. Tbe plaintiffs introduced tbe record of a civil action lately pending and determined in tbe Superior Court of Currituck County, wherein tbe present plaintiffs, James C. Carter and William Minot, Jr., together with W. II. Eorbes, trustees of Swan Island Club, were parties plaintiff and tbe present defendant was party defendant. It appears from an inspection of said record that tbe plaintiffs alleged that they were tbe owners in fee and in possession of tbe land described in tbe complaint and that tbe defendant bad committed acts of trespass thereon.
    Tbe defendant in bis answer denied that the plaintiffs were owners and alleged that be was tbe owner in fee of an undivided interest in tbe land. He admitted tbe entry and alleged that tbe same was lawful.
    Tbe cause came on for trial at Fall Term, 1896, and tbe following issue was submitted to tbe jury: “To what part of the land described in tbe complaint are tbe plaintiffs, trustees, and tbe defendant respectively entitled?” and tbe jury responded: “Tbe defendant to one fifty-fourth part of tbe whole, and tbe plaintiffs to tbe balance thereof.” Judgment was rendered in accordance with tbe verdict, “that tbe defendant owns in fee-simple one undivided fifty-fourth. part of said land and tbe plaintiffs, trustees, tbe balance of tbe same.” A full description of tbe land is set out in tbe judgment. Thereafter tbe plaintiffs in said action instituted a special proceeding in which tbe defendant therein, being tbe defendant herein, was party defendant for tbe purpose of having partition of the land. In the petition in said proceedings the plaintiffs alleged that they were tenants in common with the defendant of the land described therein, being the same land described in the complaint in the civil action, and setting forth the interest of the parties. The defendant filed no answer and the Court rendered judgment directing partition, appointing commissioners for that purpose. The commissioners made partition, allotting to the defendant by metes and bounds one fifty-fourth part in value of the land and to the plaintiffs the balance thereof; and on September 23, 1898, their report was duly confirmed by the Court and the parties adjudged to hold the portions allotted to them by the commissioners. Thereupon the defendant introduced a grant for the locus in quo from the State to John Williams, Thomas Williams and Jeremiah Land, also a deed from Thomas Land to himself bearing date February 1, 1899. The defendant showed that Thomas was one of the heirs at law of Jeremiah Land, one of the persons named in the grant.
    The record also states “that it is admitted the defendant is a tenant in common with them to the extent of the interest conveyed to him under the deed from Thomas Land of February 1, 1899, unless the defendant is estopped by the proceedings set up in this action.” It was conceded that the present plaintiffs succeeded to the title of the plaintiffs in said action and proceeding. The plaintiffs moved for judgment, the motion was denied and the plaintiffs excepted.
    The Court instructed the jury that if they found from the evidence that Jeremiah Land was one of the original grantees from the State to the land in controversy, that he died seized of the same, and that Thomas Land, from whom the defendant bought February 1, 1899, was not a party to the proceedings introduced in evidence, the defendant was not estopped.
    Tbe plaintiffs excepted, and from a judgment for tbe defendant appealed.
    
      Pruden & Pruden and Shepherd & Shepherd, for tbe plaintiffs.
    
      B. F. Aydlett, for tbe defendant.
   CoNNOR, J.,

after stating tbe case. Tbe plaintiffs contend that the defendant is estopped from asserting title to any portion of or interest in tbe land in controversy, first, by tbe verdict and judgment in the civil action rendered at Pali Term, 1896; and, second, by tbe final judgment in tbe special proceedings for partition of September 23, 1898.

Tbe defendant admits that be is estopped to assert any title which be owned at the time of tbe institution of said action and of said special proceding, or which he has derived from tbe parties to said action, or any person claiming under said parties, but insists that be is not estopped to assert title derived from Thomas Land, who claims under Jeremiah Land, neither of whom were parties to or in any manner bound by tbe judgment in said action or proceeding. This is the sole question presented upon this record.

Before proceeding to discuss tbe authorities relied on by counsel, it will be well to ...-rmta-Hie rHspnsitirvn of this case made by this Court at August Term, 1902 (131 N. C., 14). The case as then presented was an appeal from an order continuing to the bearing an injunction restraining tbe defendant from trespassing upon the land pending litigation. Tbe Court decided that tbe Judge was in error in making said order. It is not contended that tbe judgment then rendered was final or worked an estoppel upon tbe plaintiffs to further prosecute this action. The appeal was not from any “judgment” but from a “judicial order” as provided in section 548 of Tbe Code. Tbe term “order” is sometimes applied to an interlocutory judgment or decree. Indeed, under Tbe Codes of the several States interlocutory judgments and decrees are no longer recognized and “orders” have been substituted therefor. 17 Am. & Eng. Ency., 763. The defendant, however, says that this Court in the opinion rendered decided the question now presented, and that the decision became the “law of the case” and binding upon us in all other and future steps herein. It is well settled that the decision of a question presented by the record and necessary to be decided in the final disposition of the case is conclusive upon the parties.

We will not entertain a proposition to “rehear” a case by means of a second appeal. Fretzfelder v. Ins. Co., 123 N. C., 164, 44 L. R. A., 424; Setzer v. Setzer, 129 N. C., 296. This principle, however, cannot be so extended as to include such a case as this. The only question presented by the former aupeal was whether his TTonnr shmilrl have made the interlocutory order continuing the injunction to the hearing, and in no manner involved the final detennination of the case or the rights of the parties upon the trial thereof. We'therefore conclude that it is our duty to decide this appeal as if presented for the first time, giving to the views expressed by this Court such weight as in our opinion they are entitled. The learned Justice, writing for the Court, says: “In the action of ejectment the only title in issue was that of the defendants; the plaintiffs’ title was not in controversy. It'was there found and adjudged that the defendant was a tenant in common with the plaintiffs.” The record shows “that the action was in trespass and not ejectment. The plaintiffs expressly put their title in issue by alleging that “they were the owners in fee-simple and in the possession of the land.” The defendant not only joined issue by denying the allegation of ownership, but by affirmative averment put his title in issue, alleging that he was tbe owner of an undivided interest, stating tbe extent thereof. It is difficult to see bow tbe title of tbe parties could bave been more clearly put in issue. Under tbe practice prevailing prior to tbe adoption of Tbe Code, tbe defendant’s answer would bave constituted a general denial or plea of “not guilty” and a special plea of liberum tenementum. Tbe cause would bave been tried upon tbe general issue and tbe special plea. A verdict upon tbe general issue would not bave worked an estoppel, for tbe reason set forth by Pearson, in Rogers v. Ratcliff, 48 N. C., 225; Stokes v. Fraley, 50 N. C., 377.

In tbe last ease be said: “If tbe defendant bad relied on bis special plea, there would bave been an estoppel in respect of bis title.” Tbe effect of a verdict and judgment in actions involving title to land under Tbe Code system is discussed by Pearson, O. J., in Falls v Gamble, 66 N. C., 455, where be says: “Had Gamble brought bis action against Palis for trespass on tbe land, and Palls in bis answer bad admitted tbe possession of Gamble and tbe committing of tbe alleged trespass by bis orders and put tbe defense on bis title, * " * * a verdict and judgment would bave worked an estoppel in tbe same way that it would have done in tbe old action, trespass quaere clausum under tbe plea of liberum tenementum. Indeed, under Tbe Code of Civil Procedure, in an action for land, when the complaint avers title in tbe plaintiff, tbe answer admits possession, denies tbe title of tbe plaintiff and sets up title in tbe defendant, a verdict and judgment will conclude tbe parties and privies in respect to tbe title. * * * In an action for land, tbe plaintiff, if be does not wish tbe action to try title, should merely allege that be is entitled to tbe possession and that tbe defendant withholds it to bis damage; and tbe defendant, if be does not wish tbe action to conclude tbe title, should in bis answer merely deny tbe allegation of tbe complaint so as to make it in effect a plea of ‘not guilty’ or the 'general issue.’ ”

We "therefore conclude that the defendant is estopped by the judgment to deny the facts found by the jury, to-wit, “that the plaintiffs are entitled to fifty-three fifty-fourths of the land. The effect of the judgment was to leave the parties in possession as tenants in common, each having, as between themselves, the interests adjudged by the Court ja-]5on the verdict.

In the view which we take of the effect of the partition proceeding, it is not necessary to decide the effect of this estoppel upon an after-acquired outstanding title, and we forbear to express any opinion thereon.

The question next arises as to the effect of the final judgment in the partition proceeding which was put in evidence. It is therein settled that the plaintiffs and the defendants are the owners and entitled to the possession of the several portions of the land allotted to them by the commissioners. The defendant admits that he has entered upon that portion of the land allotted to the plaintiffs and committed acts of trespass thereon. He seeks to justify such entry by alleging that since said partition he has become the owner of one-ninth undivided interest in said land by virtue of a deed from one Thomas Land who was, at the time of said partition by title paramount the - owner of such interest; that neither said Land nor those under whom he claimed were parties to said proceeding. Is the defendant estopped to assert such title against the plaintiffs? The plaintiffs say that he may not do so for that, first, the final judgment in the proceedings in partition settled the rights of the parties to the entire tract of land, that the quantity to which each party was entitled was fixed by the judgment, and that neither party shall be heard to bring into question the fact so settled and determined, either by showing that he then •owned a larger interest or that be bas acquired an outstanding title; and second, that there is an implied warranty arising upon tbe partition, which estops, by way of rebutter, tbe defendant from setting up sucb title.

In regard to tbe first question, it is interesting to trace tbe development of tbe law on tbis subject. We are thereby •enabled to better understand and distinguish tbe conflicting decisions. It was held at one time “that a writ of partition or a petition for partition, which is but a substitute for tbe former, is a mere possessory action” and that judgment therein did not bar or estop tbe parties in an action of higher dignity involving title. Freeman on Oo-tenancy, section .529. Mr. Freeman says: “In tbe greater portion of tbe United States actions for partition, like actions in ejectment, have ceased to be merely possessory actions and have come to involve tbe right as well as tbe possession.” He bas collected in tbe note (Nicely v. Boyles, 40 Am. Dec., 638) an interesting history of tbe law and a number of decided cases upon tbe subject. It is not necessary, however, that we go beyond our own Reports to find a strong, able and exhaustive discussion of tbis question. Judge Pearson, writing for the Court in Armfield v. Moore, 44 N. C., 157, not only vindicates tbe wisdom in which tbe law of estoppel is founded, '“without wbiflh.it..would be impossible to administer law as •a systemT_-bn-t.,.a.pplies it to proceedings for partition. This . •case is one of tbe landmarks of our jurisprudence, familiar to every lawyer in the State. It is there settled beyond •controversy that a final decree or a petition for partition works an estoppel of~record"'u^nT~inie''parties*~th'eTetov---and- • ■that neither shall be heard to say"flrár~any"ó:T~ the Tacts therein settled were not-trua._He says: “Herewe~have ~~ facts agreed on by tbe parties, entered on tbe record, partition and decree in pursuance thereof, possession in sever-alty.” * * * Mr. Freeman says: “At the present time there can be no doubt that a judgment in a proceeding for the partition of land is as conclusive upon the matter put in issue and tried, as a judgment in any other proceeding, and may be set up as a bar to a writ of entry involving the-same question of title. And a suit for partition is perhaps the only proceeding known to the law in which every possible question affecting the title to real estate may be made an issue and determined.” Ereeman on Judgments, section 304. This principle is in no manner affected by what is said by this Court in Harrison v. Ray, 108 N. C., 215, 11 L. R. A., 122, 23 Am. St. Rep., 57. That was an action to correct one of the deeds of partition.

The defendant’s counsel in his well-considered brief insists that the estoppel operates only upon the title which the parties to the record then owned, and does not affect his right to buy in and assert an existing and outstanding title 'not’affected by the judgment. We have found but one case in our Reports in which this question is presented and decided. In Mills v. Witherington, 19 N. C., 433, it appeared ^that partition had been made upon petition of the defendant against the lessor of the plaintiff in the County Court; that the report of the commissioners was duly confirmed and final judgment rendered; and the lessor of the plaintiff afterwards obtained a grant from the State for the land which had been assigned to the defendant in severalty, alleging that the same was vacant. In the action of ejectment against the defendant, she rested her right to recover on the grant. The defendant set up the judgment in the partition .proceeding as an estoppel. Daniel, J., said: “If the land sought to be recovered by the plaintiff was embraced in the report of the commissioners, which report had been confirmed and final judgment rendered thereon, then we think the lessor of the plaintiff, who had been a party to that judgment, was concluded, bound and estopped to controvert anything contained in it. Tbe Legislature by the Act of 1189 gave to tenants in common of real estate the petition for partition, in the place of the ancient -writ of partition. The final judgment at common law in a writ of partition runs thus, ideo consid-eratum est quod partitio praedicta firma et siabilis in per-petuwn teneatur. Thomas Coke, 700. And it was conclusive on the parties and all claiming under them. In Clapp v Bronagham, 9 Cow., 569, the Court says that the judgment in partition, it is true, does not change the possession but it establishes the title, and, in an ejectment, must be conclusive. The judgment of the Court adjudging a share to belong to one of the parties and allotting it to him to hold in severalty, must be sufficient to authorize him to recover it as to all the parties to the record, the judgment is as to them an estoppel. The Act of 1789 gives the same force to a final judgment in a petition for partition of real estate. It declares that the division, when made, shall be good and effectual in law to bind the parties, their heirs and assigns.” Battle, J., in his note to this case, says: “The doctrine of estoppel as laid down in this case is clearly established.” Chapter 47 of The Code is practically a reenactment of the Act of 1789. Mr. Freeman in his work on Co-tenancy cites this case in support of the proposition that one of several heirs may be bound by a decree of partition, not only as to rights held by him at the time of partition, but also to the rights subsequently purchased of other heirs who were not parties to the partition, citing the case of Short v. Prettyman, 1 Houst., 334, in which it was expressly held by the Delaware Court that “the decree is binding and conclusive, not only as to the rights which the parties had in the premises at the time of the partition, but also as to the rights which they had subsequently acquired from other heirs of the premises, who were not parties to the partition and were not bound by the admissions or the decree establishing it.”

The Supreme Court of Missouri, in Forder v. Davis, 38 Mo., 107, says: “We decide nothing here, now, concerning the rights of any stranger to the partition, or of any person not a party thereto. But in reference to this plaintiff, we think this judgment operates as a bar against him at law, not only in respect of the estate and title which he then had, but in respect of any title which he might thereafter acquire. There is here no covenant of warranty by deed; but there is such a thing as an estoppel in pais and by matter of record, which, like an estoppel by deed, may have the effect to pass an after-acquired title by operation of law. The partition establishes the title, severs the unity of possession and gives to each party an absolute possession of his portion. A partition is sometimes altogether the act of the parties rather than the act of the law. The binding and conclusive judgment is, in its very nature, very much like the old livery of seizin under - a feoffment, which was matter in pais, or like a fine or a common recovery which was matter of record, and these ancient assurances were of that solemnity and high character that they not only passed an actual estate and divested what title the party then had, that operated by way of estoppel to pass all future estate and possibility of right which he might thereafter acquire. Shep. Touchstone, 2-6 ;■ 204-6; Rawle on Cov. Title, 402. And we see no good reason why this solemn judgment in partition, which the statute declares shall be firm and effectual forever, should not be allowed to have the same operation against all parties to the record.” See also, Reece v. Holmes, 5 Rich. Eq., 540. These authorities would seem to establish the law as laid down in Mills v. Witherington, supra.

There is another view, however, of the case which we think equally conclusive. Mr. Ereeman says that “The preponderance of tbe authorities is probably in favor of the theory that as each co-tenant, who has been evicted after a compulsory partition, may call upon his co-tenants to contribute their proportions of his loss, each of them is, by his obligation of warranty, estopped from asserting any independent adverse title to the properties assigned to the others.” Freeman on Co-tenancy, section 533. Mr. Wash-bum thus states the doctrine: “Where partition has been made by law, each partitioner becomes a warrantor to all the others, to the extent of his share, so long as the privity of estate continues between them. And inasmuch as a war-rantor cannot claim against his own warranty, no tenant, after partition made, can set up an adverse title to the portion of another for the purpose of ousting him from the part which has been parted oif to him. When partition has been made, the tenant, to whom a part has been set out, is regarded in law as a purchaser for value of the same.” Wash. R. P., 723. In Venable v. Beauchamp, 3 Dana, 321, 28 Am. Dec., 74, the question is discussed by Marshall, J., and a valuable note is attached by Mr. Freeman. The learned Justice says: “But a further, and, as we think, a conclusive evidence of the relation subsisting after partition is furnished by the universal acknowledgment and assertion of the principle that to every partition the law annexes an implied warranty. The implied warranty which the law annexes to the partition is, it is true, in many respects special. It is so, not only with regard to the person or persons who may take advantage of it, but also with regard to the amount of the recompense. * * * The principle being that the loss shall be equally borne by the parties making the partition, and the effect that the losing party may have a repartition. But although the effect of the warranty is limited as to the extent of the recompense and the manner in which it is to be made, it is not limited as to the land warranted. It embraces the whole of the land allotted to the warrantee in the partition. As the law makes each parti-tioner tbe warrantor of tbe other as to the extent of the portion allotted to him, whether there be an express warranty in the deed or not, and as no principle is better settled at common law than that a warrantor is barred or estopped to claim against his own warranty, it seems clearly to follow that no party to a partition can be permitted to assert an adverse title for the purpose of ousting another party from his portion, allotted to him by the same partition, though there be no express warranty in the deed.” We quote this language at length, as it meets the very ingenious suggestion of the defendant’s counsel that the implied warranty should not operate as an estoppel, because in the event of the eviction by a stranger the defendant will only be liable to the plaintiffs for one fifty-fourth of the value of the whole -land, therefore he should be estopped only to that extent. The effect of a warranty, as an estoppel upon the warrantor, is so fully and ably discussed by Mr. Justice Walker in Hallyburton v. Slagle, 132 N. C., 957, that we deem it unnecessary to do more than to refer to his opinion in that case.

We have examined with care every case cited by the defendant’s counsel, and while some of them do lay down the law as contended by him, they are based upon constructions of statutes, as in Massachusetts. Those not thus distinguished are not in harmony with the best considered authorities and decided cases. We therefore conclude that by the judgment in the special proceeding for partition the defendant is estopped to assert his after-acquired title against the plaintiffs. It is immaterial whether this conclusion is based upon the first proposition or the last, as they bring us to the same result and are consistent with each other. His Honor should havb instructed the jury in accordance with the plaintiff’s prayer, and for error in failing to do so tliere must be a

New Trial.

Clare, O. J.,

dissenting. The identical point now presented was passed upon in the former appeal in this case, 131 N. C., 14, and the decision then made by a unanimous Court should be the law of this case. It was there said: “In partition proceedings between tenants in common no title passes, only the unity of possession is dissolved and the title vests in severalty, the common source of title resting undisturbed.” Lindsay v. Beaman, 128 N. C., 189. Land’s interest never passed to plaintiffs and was not represented, nor was he a party; therefore he was not bound by the action or special proceeding. As to him they were void, and he had a right of entry and possession equally with the other tenants in common, whomsoever they might be. By his deed passed all the right of Land to the defendant, who then stood in Land’s shoes, and had all the rights and remedies of Land, independent of and notwithstanding the judgment in said action and decree of partition

Thus the identical point now presented has been decided, and in this action the matter is res judicata. It cannot be presented by a second appeal. The remedy, if error was committed by this Court, would have been by a petition to rehear. Holley v. Smith, 132 N. C., 36; Perry v. Railroad, 129 N. C., 333, and cases there cited. Nor does it vary this rule that the former decision was upon an appeal from the continuance of the restraining order in this cause, and this appeal comes up on appeal from a final judgment. The present appeal is solely upon exceptions that the Judge charged in exact accordance with the former ruling of this Court and his refusal to charge contrary thereto. Setzer v. Setzer, 129 N. C., 296.

Besides, tbe former decision was correct. Richardson v. Cambridge, 79 Am. Dec., 767, is a case on all-fours and sustains our former ruling. See also, Christy v. Waterworks, 68 Cal., 73.

In 17 A. & E. Enc., 819 (1 Ed.), it is said: “A party to a partition wbo subsequently acquires a new and independent title wbicb was in no way represented by any of tbe parties to tbe suit may be permitted to assert it.” Henderson v. Wallace, 72 N. C., 451, bolds that one not a party or privy to partition proceedings is in no way affected by tbe decree. To same effect 21 A. & E. (2 Ed.), 1186: “Tbe familiar principle that judgments and decrees bind only parties and privies is as applicable to judicial proceedings in partition as to other litigation,” and cases there cited. Land not having been a party to tbe partition decree in 1895, bis interest was not affected by it. He could recover it or sell it to another, and tbe defendant could acquire and assert it as well as another. This is not tbe case of “feeding an estoppel.”

In Harrison v. Ray, 108 N. C., 215, 11 L. R. A., 722, 23 Am. St. Rep., 57, it is held that in voluntary actual partition tbe deeds convey no title, but simply ascertain by metes and bounds tbe interest of each. This has been cited and affirmed by Douglas, Jin Carson v. Carson, 122 N. C., at p. 648; by Shepherd, J., in Fort v. Allen, 110 N. C., at p. 192, and again as recently as Harrington v. Rawls, 131 N. C., 40, and was stated also in Lindsay v. Beaman, 128 N. C., 189. In 21 Am. & Eng., 1193, it is said that “'Both in voluntary and judicial partition, tbe decree does not create or divest any title to, or other right in, tbe property, but merely severs tbe unity of possession and determines tbe share wbicb each tenant is entitled to possess in severalty.”

Tbe title of Land could not be divested by tbe proceeding to which he was not a party, and tbe purchase of it by White, after the decree, was not the purchase of an outstanding incumbrance or title, but the ptirchase of an intact interest in the property which was not the subject of the litigation and decree to which White had been a party in 1895. In that proceeding he only set up the title to the interest he then had. The interest of Land would be good if now held by him, and White cannot be affected by that decree as assignee of Land’s interest, any more than would be any other purchaser from Land.  