Albertson v. . Williams

Sjiith, C. J., (after stating the facts). In all these transactions growing out of the sale of the intestate’s large and valuable tract of land, it is nowhere suggested that any part of the purchase money, beyond that used in payment of the executions, has been paid by the defendant Williams to-any one, and yet he claims the entire property as his own. It may be, that the clerk sold and he purchased for a sum only sufficient to pay his own claim and the costs attending the action. But of this there was no proof received or preferred at the trial. Williams may have acquired the legal title and extinguished the plaintiff’s claim to any of the large surplus produced by the sheriff’s sale. Assuming that the record concludes with the confirming decree and contingent order of resale upon the default of the intestate, the action is incomplete, and should, even after such lapse of time, be re-instated on the docket and proceeded with, as if no such interruption had taken place, by executing the order of sale, as was done in Miller v. Frezor, 82 N. C., 192. If the cause, however, has been carried on to its final consummation, then, as suggested by the Court, the only re *268 dress for wrong clone the intestate’s estate, would be found in a new action impeaching the decree or judgment, if sufficient grounds therefor exist. But whether any, or what remedies remain, it is manifest the present suit cannot be sustained, because the subject-matter of it has been passed upon and .adjudged, and the rights of the parties determined in the prior suit. This is so upon principle, and is so emphatically declared in Gay v. Stancill, 76 N. C., 369, and more recently in Long v. Jarratt, 94 N. C., 443, in affirmance of the maxim, nemo debet bis vexari pro una et eadem causa, as to need no further remark. The affidavits used upon the motion to vacate the reference and judgment, were wholly irrelevant to the present trial to affect the rights of the parties, and would be only •competent as admissions upon some disputed matter of inquiry. Nor was there any error in rejecting the record evidence of the second ejectment suit, offered to impeach the action of the Court in the first, since it is not competent to do so in the present action; nor, for a like reason, in denying the motion to bring forward that unfinished suit, and thus introduce in this, matter foreign to its purpose. These rulings are correct, and the judgment of nonsuit must stand. It is so adjudged. No error. Affirmed.