
    WEEKS v. McPHAIL.
    (Filed October 1, 1901.)
    1. JUDGMENT — Decree—Nonsuit.
    
      A decree in. partition proceedings reciting that it was rendered on tbe merits, will not be construed to be a judgment of nonsuit because it orders that tbe petition be dismissed.
    2. ESTOPPEL — Former Adjudication — Erroneous Judgment — Evidence.
    
    
      A party to a subsequent proceeding, wbo introduces a will wbicb bad been erroneously construed in tbe former proceeding, for tbe purpose of showing that the matter at issue bad been adjudicated, does not thereby lessen tbe effect of tbe former proceedings as an estoppel.
    3. ESTOPPEL — Former Adjudication■ — Partition.
    All parties to a partition proceeding, it being equitable in its nature, are estopped by a decree therein.
    4. ESTOPPEL. — Ejectment—Pleading.
    Estoppel need not be pleaded in actions of ejectment.
    PetitioN for rehearing in tbis ease overruled. For former opinion, see 128 N. 0., 130.
    
      J. L. Stewart, Allen & Dortch, J. D. Kerr, and Battle & Mordecai, for tbe petitioners.
    
      F. B. Cooper, and Ceo. E. Butler, in opposition.
   Fubches, G. J.

Tbis is a petition to rebear tbis case, decided at tbe last term of tbe Court, and reported in 128 N. C., 130. There are five grounds assigned in tbe petition in wbicb error is alleged in tbe opinion of tbe Court- when tbis case was here before. And while tbe argument before'us was principally upon tbe first assignment, none of them were abandoned, and it will be necessary that we shall examine and pass upon all of them.

Tbe first assignment is as follows: “That tbe decree of 1854, dismissing tbe petition, was in substance a nonsuit,” and cites Strauss v. Beardsley, 79 N. C., 59. Tbis case, in our opinion does not sustain tbe contention of tbe petitioners,, and is not authority for bolding that tbe “decree” in tbe Courts of Sampson, in 1854, was “in effect a nonsuit.” That case shows that tbe judgment in that ease, which tbe Court says was “in substance a nonsuit,” was a judgment dismissing tbe action for tbe reason that tbe Court had no jurisdiction to try the "case. And tbis being so, it shows it was not disposed of upon its merits' — could not have been; and tbis being so, if tbe Court has proceeded to try tbe case and enter up a formal judgment, it would have been a nullity, and would have been no estoppel; while it was not disputed, and can not be disputed, that tbe Court of Pleas and Quarter Sessions of Sampson County bad jurisdiction of tbis proceeding for partition, and tbe Superior Court upon appeal.

Originally, tbe Courts of law and equity bad concurrent jurisdiction of matters of partition. But in 1787 tbe Legislature gave jurisdiction in matters of partition “to tbe Justices of tbe County Courts of Pleas and Quarter Sessions,” as well as to tbe Superior Courts, and prescribed tbe mode and manner in which it should be done; that it should be done by filing “a petition as was done in tbis case. Rev. Stat.,. Vol. I., Chap. 85, sec. 1.

Tbe Legislature did not only give tbe county Courts jurisdiction in cases of partition, but it prescribed tbe manner of procedure; which was substantially tbe equity practice in such cases. There were tbe best of reasons for prescribing tbe equity practice, because matters of partition involved equitable jurisdiction. Tbe judgments of tbe law Courts-were in solido, yea, yea, or nay, nay; while the decrees in Courts of equity could be shaped and modified to meet the facts and requirements of the case. They could not only grant the order for partition, but direct the assignment in owelty, and require the same to be reported back to the Court, subject to exceptions, to be passed upon by the Court before a final decree was rendered. This is the reason the final order in matters of partition was Galled the “decree” of the Court. So this case is distinguished from Strauss v. Beardsley, in that the county Courts of Sampson had jurisdiction, and the Superior Court had on appeal; while in Strauss v. Beardsley it did not. And it is not denied but what Hester Weeks and all her children were parties to the proceeding for partition. It is distingushed from Strauss’s case by the fact that judgment of dismissal in that case was for the want of jurisdiction — the merits were not passed upon; while in the case of Raynor v. Weeks the merits of the case are discussed and expressly passed upon. And it would-seem strange if we should say, forty years afterwards, that the Court did not consider and pass upon the merits of that case, although it expressly said it did, because it was said inadvertently, as we must think, that the “petition be dismissed,” instead of saying that the petitioner will take nothing by his petition.

The petitioner also cites Campbell v. Potts, 119 N. C., 530. But that case is also put upon the want of jurisdiction, and the further fact that it appeared that it was not made upon a consideration of the merits of the case.

The petitioner also cites the case of Bond v. McNider, 25 N. C., 440. But this is also put upon the ground that the Court had no jurisdiction.

The petitioner also cites Homer v. Brown, 57 U. S., 354. But the opinion in that case seems to hinge upon the ground that the Court was called to pass upon an agreed state of facts, in which it was agreed that, if the opinion of the Court was adverse to tbe plaintiff, a judgment of nonsuit should be entered. This, we think, is no more than we see in almost every-day practice, where the Court intimates an opinion adverse to the plaintiff, he takes a nonsuit. There was no such thing as this in the ease of Raynor v. Weeks in the Courts of Sampson. In Raynor v. Weeks it appears that the defendant answered and the case was heard upon the petition and answer, and the decree entered thereon, from which there was no appeal. We can not sustain the petitioner on the first assignment.

The second assignment of error is “that the Court overlooked, or did not give the fact the attention it deserved, the fact that the plaintiff on the trial introduced in evidence the will of Richard Warren, which showed that Hester and her children were tenants in common under said will, and that this set the matter of estoppel at large.” We do not think .so. The will of Warren is not pleaded by the plaintiff so as to make it a part of the record, and we do not think the plaintiff was estopped by introducing this will in evidence. It seems to us that the will was introduced for the purpose of showing what was before the Court in 1854, when the judgment was rendered, and for the purpose of showing that the same matter was passed upon then that is involved in this action. For that purpose (and that is the only purpose we see that’t was offered for) we think it was proper and did not estop the plaintiff.

The third assignment of error is disposed of by what we have said as to the second assignment.

The fourth assignment of error is that the Court overlooked the fact that only one of the children of Hester Weeks was a plaintiff, and that estoppels only operate as between adverse parties. It is seen that a proceeding to partition land is equitable in its nature; and in equity all parties, whether plaintiffs or defendants, are bound — estopped by the judg-meat i>r decree. This, it seems to us, is a sufficient answer to tbe assignment. And while tbe judgment of 1854 was adverse to tbe interests of all tbe children (all defendants except Hester) they bad tbe right to be beard and were beard, and tbe right to appeal, and as they did not do so, they are bound by tbe judgment of tbe Court. We can not bold that defendants in partition proceedings are not bound by the judgment of tbe Court; to do so would destroy tbe title to thousands of tracts of land in this State — and to sustain this assignment of tbe petitioner would be to do so.

Tbe fifth assignment can not be sustained. If we understand it, it has been disposed of by what we have already said.

Tbe sixth assignment is “That tbe Court overlooked the-fact that no estoppel is pleaded,” and cites Wilkins v. Suttle, 114 N. C., 556, as authority for tbe assignment. We do not think this case sustains tbe assignment. It seems to be-authority for bolding that, in actions of ejectment and for possession of land, it need not be pleaded. Neither do we-think Bogart v. Blades, 117 N. C., 221, cited by petitioner, sustains bis contention. It bolds that if a party has bad tbe right to be beard and to assert bis rights, be is bound by tbe judgment. And it appears that all tbe parties interested in this land under tbe will of Bichard Warren were properly before tbe Court, bad tbe opportunity to be beard and were-beard. '

After giving a careful examination of all tbe errors assigned in tbe petition, we do not think it should be allowed _

Petition dismissed.  