McArthur v. . Griffith

WaleeR,, J., after stating the case: The order of the court by which the widow and heirs of J. P. Hannah were permitted to become defendants and to answer the complaint was a proper one. The administrator, E. A. Griffith, had failed to answer and resist the plaintiff’s recovery of a satisfied claim which the latter sought to have paid again by subjecting the land which belonged to the widow and heirs, and which the ancestor of the latter had mortgaged to secure the original debt, to the payment of the alleged debt. Why the administrator refused to plead or to perform his plain duty as a fiduciary we were not told. It is manifestly just that under such circumstances the heirs and widow should be given the opportunity to resist the foreclosure of the mortgage and to prevent the land from being applied to the payment of a debt which does, not exist. It has been expressly so held. Bevers v. Burk, 88 N. C., 446; Speer v. James, 94 N. C., 417; Tilley v. Bivens, 112 N. C., 348. In the cases cited the heir was allowed to plead the statute of limitations. Why not be permitted to show in defense of their right to the land, freed *548 from the encumbrance, that the debt had actually been paid ? In Shewne v. Vanderbout, 1 Russell and Milne, 347, the Court permitted .a residuary legatee to defend in a creditor’s suit, and in Steele v. Steele, 64 Ala., 438, it was held that the heir is at liberty to dispute any and every debt that may be presented against the estate of his ancestor, and may set up every defense thereto which is legally sufficient. The decision rests upon the ground that there is no privity between the administrator and the heir, and hence the former cannot bind the latter by either his admissions or omissions; that while by omitting to plead the statute or by an express promise to pay he could revive a claim so as to charge the personal assets, he has no such power over the real assets, which descend directly to the heir, as to whom all his acts are res inter alios acta. The case last mentioned was citecl with approval in Bevers v. Park, supra. In the latter case the Court says that the object of the proceeding by the creditor is to deprive the heirs of their land, and it is but reasonable that they should be permitted to resist the suit and save their land, if legally possible. And if they had the right to resist it, why should they not be allowed to avail themselves of all the rules of pleading, practice and evidence necessary for the purpose % The judgment recovered in the Superior Court of Davidson County in the suit between the widow and heirs at law of J. P. Hannah, as plaintiffs, and the present plaintiff, as defendant, constitutes a complete bar to the plaintiff’s recovery in this suit. The rule is that a question once determined between the parties cannot again be brought in question, and the former decision may be relied upon as an estoppel, or, more properly speaking, a bar, to .any action that may thereafter be tried involving the same point. “A judicial determination of the issues in one action is a bar to a subsequent one between the same parties having substantially the same object in view, although the form, of the latter and the precise relief sought is different from the former.” Lumber *549 Co. v. Lumber Co., 140 N. C., 437; Edwards v. Baker, 99 N. C., 258; Tuttle v. Harrill, 85 N. C., 456. Tbe issue in tbe Davidson County suit was whether the debt bad been paid, and tbe issue here is precisely tbe same, although the position of the parties on the record is reversed. The widow and heirs of J. P. Hannah had the right to bring the action to remove the cloud from their title. 7 Cyc., pp. 255, 256, and 6 Cyc., pp. 319, 320, and notes. Equity interferes to remove clouds upon title, because they embarrass the owner of the property clouded and tend to impede his free sale and disposition of it. Byne v. Vivian, 5 Vesey, 604; Ward v. Dewey, 16 N. Y., 531; Bissell v. Kellogg, 60 Barbour, 629. A cloud upon title is in itself a title or encumbrance, apparently valid, but in fact invalid. It is something which, nothing else being shown, constitutes an encumbrance upon it or a defect in it — something that shows prima facie the right, of a third party either to the whole or to some interest in it, or to a lien upon it. 2 Cooley on Taxation (3d Ed.), p. 1448; Detroit v. Martin, 34 Mich., 170. When the claim, which is a lien if in force, appears to be valid on the face of the record, and the defect or invalidity can only be made to appear by extrinsic evidence, particularly if the proof of it depends upon oral testimony, it generally presents a case invoking the aid of a court of equity to remove it as a cloud upon the title. Crocke v. Andrews, 40 N. Y., 547; Sanxay v. Hunger, 42 Ind., 44; 2 Story Eq. Jur. (13th Ed.), secs. 698, 699, 700. If, on the other hand, the ( title be void on its face — if it be a nullity, a mere feto de se, when produced — so that an action based upon it will fall of its own weight, as has been said, then the title of the party is not considered as necessarily clouded thereby. Busbee v. Macy, 85 N. C., 329; Busbee v. Lewis, 85 N. C., 332; Browning v. Lavendar, 104 N. C., 69; Thompson v. Etowah Iron Co., 91 Ga., 538; Lick v. Bay, 43 Cal., 83. This equity is also enforced for the reason that the proof of the party upon *550 wbicb be relies to show tbe invalidity of the encumbrance may be lost by lapse of time. Browning v. Lavendar, supra. The widow and heirs of J. P. Hannah properly brought their action to have the note and mortgage cancelled, so as to remove the cloud from their title. Byerly v. Humphrey, 95 N. C., 151; Murray v. Hazell, 99 N. C., 168. The doctrine relating to cloud upon title is founded upon true principles of equity jurisprudence, which is not merely remedial, but is also preventive of injustice. If an instrument ought not to be used or enforced, it is against conscience for the party holding the same to retain it, since he can only do so with some sinister or wrongful design. If it is a negotiable instrument it may be used for a fraudulent or improper purpose. If it is a deed purporting to convey lands, which creates an apparent encumbrance, its existence in an uncancelled state necessarily is calculated to throw a cloud over the title. 2 Story Eq. Jur. (13th Ed.), sec. 700, and notes. Whether the action was properly brought in the Superior Court of Davidson County or should have been brought in the Superior Court of Forsyth County is a question we need not decide. It relates to the venue or place of trial, and not to the jurisdiction. If the action was not brought in'the proper county it could be tried therein, unless the defendant, who is the plaintiff in this action, demanded in writing, before the time for answering expired, that the trial be had in the proper county. Revisal, sec. 425. This he did not do, as we think, and the objection to the venue was thereby waived. Leach v. Railroad, 65 N. C., 486; Lafoon v. Shearin, 91 N. C., 370; Cloman v. Staton, 78 N. C., 235; McMinn v. Hamilton, 77 N. C., 300. His counsel contends that the demand was made in the answer. If it was so made it might perhaps have been sufficient in respect to time. Rankin v. Allison, 64 N. C., 673; Shaver v. Huntley, 107 N. C., 623. But we do not consider what is stated in the answer and relied on by the plaintiff, for the purpose was in law a sufficient demand for *551 tbe removal of tbe cause. We quote from tbe answer: “Wherefore tbe defendants pr.ay that tbe plaintiff’s action be dismissed and that tbe plaintiff be restrained by injunction from any proceeding whatsoever against tbe defendants until after tbe determination of tbe issues joined in Eorsyth County against E. A. Griffith, administrator of J. P. Hannah, deceased, is determined.” This is clearly not a prayer for tbe removal of tbe cause, but for a stay in tbe prosecution of any action until tbe Eorsyth suit should be determined. Besides, if tbe application was made, and in proper form, it was not pressed, tbe court was not requested to pass upon it, no exception was taken to any ruling of tbe court in regard to it, and there was no appeal from tbe judgment rendered in tbe case. If made, therefore, at all, it was clearly abandoned. We conclude that bis Honor, Judge Justice, took the right: view of tbe case upon tbe facts found by him, and correctly held that tbe judgment in tbe Davidson suit barred tbe plaintiff’s recovery in this action. Affirmed.