Grady v. Parker

Stacy, C. J. The appeal presents a number of rulings which the appellants say were improvidently entered in the court below. Only two need be determined here, albeit all have engaged our attention. 1. The refusal to allow the judgment in O. I. B. No. 4237 to be renewed because it represents a part of the same indebtedness covered by the larger judgment in C. I. D. No. 4019, is to release and relieve the feme defendant from any and all liability incurred by her when she joined with her husband in the execution of the note and mortgage upon which the subject judgment was founded. This won’t do. The guardian is entitled, and, indeed, required to hold to its security. Whether the payment of the subject judgment would inure to the benefit of the judgment debtor in C. I. D. No. 5496, or could be claimed as a credit on the judgment therein, is another matter, not presently presented. 2. There was also error in overruling or resolving the pleas in bar against the defendants in C. I. D. No. 5620 and referring the case in the present state of the record. This last action is to redeem and for an accounting. The defendants plead, among other things, estoppel, laches and title by adverse possession for seven years under color. G.S. 1-38; Hughes v. Oliver, 228 N.C. 680, 47 S.E. 2d 6; Layden v. Layden, 228 N.C. 5, 44 S.E. 2d 340; Lofton v. Barber, 226 N.C. 481, 39 S.E. 2d 263; Perry v. Bassenger, 219 N.C. 838, 15 S.E. 2d 365; Glass v. Shoe Co., 212 N.C. 70, 192 S.E. 899; Potts v. Payne, 200 N.C. 246, 156 S.E. 499; Alsworth v. Cedar Works, 172 N.C. 17, 89 S.E. 1008; Bond v. Beverly, 152 N.C. 56, 67 S.E. 55; McFarland v. Cornwell, 151 N.C. 428, 66 S.E. 454; Ingram v. Colson, 14 N.C. 520; Tate v. Southard, 10 N.C. 119. They are entitled to an adequate hearing on their pleas in bar before a reference can properly be ordered in the case. G.S. 1-189; Graves v. Pritchett, 207 N.C. 518, 177 S.E. 641; *169 Garland v. Arrowood, 172 N.C. 591, 90 S.E. 766; Jones v. Wooten, 137 N.C. 421, 49 S.E. 915. Where matters in bar of tbe right of action are well pleaded, the plea nxust be tried and determined before any reference to the master. Douglas v. Caldwell, 64 N.C. 372; Dozier v. Sprouse, 54 N.C. 152. If the plaintiffs are not entitled to recover at all, it is useless to ascertain what amount they might recover if they had an enforceable cause of action. Bank v. Fidelity Co., 126 N.C. 320, 35 S.E. 588; Grimes v. Beaufort County, 218 N.C. 164, 10 S.E. 2d 640; Reynolds v. Morton, 205 N.C. 491, 171 S.E. 781. Nothing was said in Grady v. Parker, 228 N.C. 54, 44 S.E. 2d 449, which could have any bearing upon the present pleas in bar. They were not then before the Court, or in view. There are other exceptions worthy of consideration, especially those addressed to the rulings on the pleas of estoppel, but as they may not arise on another hearing in the form now presented, we omit any present determinations thereof or conclusions thereon. Nor do we reach the question of priorities, as these may be upset or disarranged on the further hearing. The judgment will be vacated and the causes remanded for further proceedings as to justice appertains and the rights of the parties may require. Error and remanded.