Huffman v. . Pearson

Winborne, J. Appellants’ assignment of error is well taken to this portion of the charge of the court: “So, with respect to this issue, gentlemen, the burden of which is on the plaintiff as I have said, I charge you that if you find by the greater weight of the evidence that the stone on the ridge, indicated on the white map by the red letter ‘B’ is an admitted corner of both the plaintiff’s and the defendants’ land, and that the line runs from that point South 21 degrees West to the old blacksmith shop, and you further find that that is the call or line of what is known as the dower line; that that line was run and marked and a corner made at the old blacksmith shop in 1867; and if you further find by the greater weight of the evidence that that is the line called for in the plaintiff’s *198 deed, and you also find by tbe greater weight of tbe evidence that that line as originally run in 1867 extended from the stone on the ridge at red ‘B’ on the white map to the blacksmith shop at red ‘A,’ as alleged in the petition, and testified to and pointed out by the witness, Watt Presnell, then and in that event I charge you that it would be your duty to answer the issue YES.” The error is the apparent assumption of fact that the blacksmith shop was located at the point indicated on the white map by the red letter A, and that the witness Watt Presnell had so testified and so pointed it out. The location of the blacksmith shop was in dispute. That it was located at the point indicated by the red letter A is a fact that the jury should find from the evidence and by its greater weight before giving an affirmative answer to the issue submitted. While appellants admit that “the stone on the ridge” is correctly represented by the red letter B on the white map', they controvert the location of the blacksmith shop. Furthermore, they contend that the testimony of the witness, Watt Presnell, leaves the location of the blacksmith shop in the realm of uncertainty, and that, on such evidence, the court should hold as a matter of law that the call from “the stone on the ridge” should be run in accordance with the course of the original line common to, and dividing Lots 6 and 7— south 20 degrees west with proper magnetic variation, that is, a variation of 3 degrees and 36 minutes. It is settled law in this State that, in processioning proceedings to establish a boundary line, which is in dispute, what constitutes the dividing line is a question of law for the court, but a controversy as to where the line is must be settled by the jury under correct instructions based upon competent evidence. Geddie v. Williams, 189 N. C., 333, 127 S. E., 423; Lee v. Barefoot, 196 N. C., 107, 144 S. E., 547; Shelly v. Grainger, 204 N. C., 488, 168 S. E., 736; Greer v. Hayes, 216 N. C., 396, 5 S. E. (2d), 169; Clegg v. Canady, 217 N. C., 433, 8 S. E. (2d), 246; Greer v. Hayes, 221 N. C., 141, 19 S. E. (2d), 232, and many other eases. It is also a well settled rule in questions of boundary that course and distance govern, unless there be some more certain description by which one or both may be controlled. In conformity with this rule, this Court has held in the case of Fowler v. Coble, 162 N. C., 500, 77 S. E., 993, that a call “to a stake at the (Harrington) house” is sufficient to control course and distance. Even so, it is easy to conceive difficulty in practical application of the rule to an object of the size of a house. Nevertheless, the rule as applied in the Fowler case, supra, pertinent to case in hand, places the burden upon the petitioner to satisfy the jury from the evidence, and by its greater weight, where the blacksmith shop stood in 1867, the date of the deed from “Levi Hartley commissioners”- to Callie Hartley and Sarah Hartley, before the course and distance from “the *199 stone on the ridge,” the agreed corner, should give way; and if the petitioner has failed to so satisfy the jury, then course and distance, with proper magnetic variation, would control. Appellants further assign as error the admission in evidence of the partition proceeding by which Lot No. 6 was subdivided and under which defendant Nell Austin Pearson acquired land involved here. While the general rule is that judgment of a court of competent jurisdiction is final and binding upon parties and privies, ordinarily to constitute a judgment an estoppel, there must be .(T) identity of parties, (2) identity of subject matter, and (3) identity of issues. McIntosh N. C. P. & P., page 748; Hardison v. Everett, 192 N. C., 371, 145 S. E., 769; Gibbs v. Higgins, 215 N. C., 201, 1 S. E. (2d), 554, and cases cited. Applying this principle to partition proceedings, it is stated by Ruffin, C. J., in Steivart v. Mizzell, 43 N. C., 242, that “a judgment at law, in partition, is conclusive, in respect to the thing in which parties had an estate in common, and also in respect to the share to which each was entitled, and to the parcel allotted to each as his share.” And in Buchanan v. Harrington, 152 N. C., 333, 67 S. E., 747, Manning, J., citing from 30 Cyc., 310, quotes in part: “ ‘The .truth is that a judgment in partition is as conclusive as any other. It does not create or manufacture a title, nor divest the title of anyone not actually or constructively a party to the suit; but it operates by way of estoppel; it prevents any of the parties from relitigating any of the issues presented for decision, and the decision of which necessarily entered into the judgment, and it divests all titles held by any of the parties at the institution of the suit.’ ” See Crawford v. Crawford, 214 N. C., 614, 200 S. E., 421, and cases cited. Furthermore, “the .primary purpose of partition proceedings is to sever the unity of possession,” McKimmon v. Caulk, 170 N. C., 54, 86 S. E., 809, of the tenants in common in and to land in question. Unless specifically brought in issue by the pleadings the lines of adjoining tracts are not involved. Hence, where under a judgment in a partition proceeding a party thereto accepts the allotment, in severalty, of a described part of the land, the subject of the action, which abuts on other land, which is not the subject of the action, and which is owned by another,' such party is not estopped to contend for the true location of the outside boundary line of the part so allotted to him, even though the adjoining land be owned by one of the tenants in common in the subject of the action, and a party to the proceeding. Hence, we are of opinion that the record in the partition proceeding is incompetent to show the location of an outside line of the land, which is the subject of partition. However, there may be circumstances under which such record may be competent as evidence tending to show acqui *200 escence in the location, of such outside line, yet such circumstances do not appear in the record on this appeal. As the ease must go back for a new trial, we express no opinion and make no decision on the question as to the sufficiency of the evidence to take the case to the jury as to the location of the blacksmith shop, particularly in view of the fact that on the issue as submitted a negative answer would leave unsettled the location of the dividing line between lands of petitioner and defendants Pearson. In Greer v. Hayes, 216 N. C., 396, S S. E. (2d), 169, the form for a single issue is suggested. Other assignments are not considered here, as the matters to which they relate may n,ot recur on another trial. New trial.