Buchanan v. . Harrington

Manning, J., after stating tbe case: In 30 Cyc., 310, tbe author, Judge Freeman, thus sums up tbe law of the title concluded by partition proceedings under modern statutes: “We apprehend, however, tbat whenever plaintiff alleges himself to be tbe owner in fee, or of any specified estate, or avers any other ultimate fact under wbicb be is entitled to relief, it becomes tbe duty of tbe defendant either to concede or take issue with tbe allegation or averment, and tbat tbe judgment in -the action will be as conclusive as it would be upon a like issue in any other action. Tbe truth is, tbat a judgment in partition is as conclusive as any other. It does not create or manufacture a title, nor divest' tbe title of any one not actually or constructively a party to tbe suit; but it operates by way of estoppel; it prevents any of tbe parties from relitigating any of tbe issues *335 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.” It has been held by this Court that the doctrine of estoppel, with its conclusive effect, applies to proceedings in partition, which, it has been held, are no longer merely possessory actions, but are proceedings in which the quantity of estate or the title can be litigated. Armfield v. Moore, 44 N. C., 157; Carter v. White, 134 N. C., 466; McCallum v. Chisholm, 146 N. C., 18. The pleadings, verdict and judgment in the partition proceedings, pleaded in the present action as an estoppel, show that the litigated question, presented by proper allegation by the plaintiffs and denied by the defendant, was the quantity of the estate held by each, and it deteimined that question. The correction of the deed,.now made the basis of the present action, could have been had in that proceeding when it was transferred to the Superior Court, by making proper amendments. This was held by this Court on the appeal from the judgment. Buchanan v. Harrington, 141 N. C., 39. “The plea of res judicata applies, except -in special cases, not only to the points upon which the court was required by the parties to form an opinion and pronounce judgment, but to every point which properly belonged to the subject in litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time and determined respecting it.” 1 Herman on Estoppel, sec. 123; Wagon Co. v. Byrd, 119 N. C., 460; Tuttle v. Harrill, 85 N. C., 456. If the Court were to correct the deed; it would not, therefore, avail the plaintiff to enlarge the quantity of the interest held by her in the land, as against the defendant and those claiming under him; the estoppel would be a complete bar. Harrison v. Bay, 108 N. C., 215. The Court would not do a vain thing. Steinback v. Relief Fire Insurance Co., 77 N. Y., 498; Sibert v. McAvoy, 15 Ill., 106; Thompson, receiver, v. Phoenix Insurance Co., 25 Fed., 296. We are, therefore, of the opinion that there was no error in the rulings of his Honor, and the judgment is affirmed. No error.