L. Harvey & Sons Co. v. Rouse

Adams, J. When the plaintiff brought suit to foreclose the mortgage, the defendants bad every needful opportunity to make any defense against a decree. They declined to resist for the reason no doubt that, according to all the evidence, they bad no available defense at law or in equity. They neither filed an answer, nor denied the debt, nor excepted to the judgment. They are consequently estopped from setting up any defense which was open to them on the former trial. Tbe proposed evidence could then have been offered. It is a familiar maxim that a man shall not be twice vexed for the same cause. If a final judgment or decree is rendered the parties cannot again be beard upon any matter which was then litigated and determined, the controversy having passed in rem judicatam and become conclusive between the parties. Bunker v. Bunker, 140 N. C., 18; White v. Tayloe, 153 N. C., 29. The action is not a collateral attack upon the judgment but a suit in equity to reform the papers and to make them what the parties intended them to be. *299 In their contention that there is no evidence of mutual mistake or mistake by the draftsman the defendants, we think, are in error. Their acceptance of the second deed, or “quit-claim,” executed by Creech and his wife with its recital of an error in the description set out in their former deed, was an admission of the error and of its correction. The correct description is embraced in the deed of trust executed by the defendants to the Virginia Trust Company, and in the complaint, a copy of which was served on each of the defendants and which in the trial of this cause was introduced in evidence as a part of the judgment roll, the plaintiff alleged that the deed of trust to the Virginia Trust Company was a lien on the land prior to the mortgage given by the defendants to the plaintiff. This is repeated in the judgment of foreclosure and in the decree of confirmation. The complaint was verified; the failure to answer was an admission of its contents; and the defendants were affected with notice of all proceedings pending the trial. In all the deeds and in the plaintiff’s mortgage the tracts of land are described as containing respectively 76 and 25 acres. The plaintiff went into possession of the land under the commissioner’s deed in 1923 and the defendants made no complaint until the present suit was begun. There is unquestioned evidence of mistake and none in rebuttal. The defendants, therefore, were not entitled to judgment of nonsuit. Furthermore, the court was justified in instructing the jury to answer the issue in the affirmative if they found the facts to be as shown by all the evidence. In response to the question whether the court should write the answer the “jury signified, yes, sir”; and then upon a poll taken each juror gave the same answer. This was the only issue raised by the evidence, and this the only instruction consistent with the proof. We cannot assent to the proposition that upon the facts of this case the plaintiff is entitled to equitable relief only on condition of a new foreclosure. We are not now concerned with the rights of innocent purchasers. Dameron v. Lumber Co., 161 N. C., 495. The only parties interested are the mortgagors and the mortgagee, and as between them it would be inequitable to deny relief when all the evidence clearly points to the fact that owing to mistake the parties did not consummate the contract they intended to make. Butler v. Durham, 38 N. C., 589; Durant v. Crowell, 97 N. C., 367; Sills v. Ford, 171 N. C., 733; Bank v. Redwine, ibid., 559; Roberts v. Massey, 185 N. C., 164; Gray v. Mewborn, 194 N. C., 348. After considering all the exceptions in the appellants’ brief we find .No error.