Bickett v. . Nash

Smith, C. J. (after stating the case.) The only matter averred in the complaint and controverted in the answer in the former action was the truth of the averments of fact by which the title of the devisee of the remainder, derived under item 5 aforesaid, is traced to the feme plaintiff, and whether that devise, in using the words “ the land whereon I now live,” construed in connection with those contained in item 1, “ the house and land whereon she now-lives,” comprehends that claimed in the suit. Both of these questions were conclusively settled by the verdict, and taken in connection with the admissions in the answer, followed by the judgment upon them, as conclusively and finally determines the title to be in the feme plaintiff. Not alone does the result show that the defendants have not, but it shows that the feme plaintiff has, an estate in fee and absolute in the premises, and the record cannot be contradicted by them. There could be no direct issue as to the title derived under the will, since this is admitted, and the only controverted fact is, not as to the testator’s ownership of the land, but whether the devises comprehend it, and thus the same consequences follow as would from a direct finding upon an issue as to title. The record shows a direct adjudication, and its results cannot be avoided by taking out a subsequent grant. If the adjudication establishes the incontrovertible fact between the parties that the feme plaintiff owned the land, the defendant can only defend himself by showing that the estate was in some legal method divested out of her after-wards, and this he has not done.- The State could not grant the land unless the title was in the State, and as the defendant is estopped to deny that it was in her when the adjudi *583 cation was made, he must show that it has been since divested to resist the recovery, and this he has not attempted to do. The cases cited for the defence are not in point, and the rulings in them proceed upon the ground of a subsequent divesting, as in Johnson v. Farlow, 13 Ired., 84, or upon the recognized rule of practice that where both parties claim the same land from the same common source neither can dispute the title of the other and show it to be in another,-unless he can connect himself with it. Fisher v. Mining Co., 94 N. C., 397, and numerous recent cases therein cited. The present case involves none of these conditions. There is no claim of an after acquired title superior to the plaintiffs’, for that of the State had been divested previously and not again acquired, and if it had been, it was not subject to an entry and regranting under the law. State v. Bevers, 86 N. C., 588. Nor do the parties claim from a common source. On the contrary, as an examination of the record shows, the controversy was not about the testator’s title, but about his disposition of the property under his will. Clearly the record constitutes an estoppel, as understood and defined in many adjudications in this Court. Armfield v. Moore, Busb., 157; Fanshaw v. Fanshaw, Ibid., 166; Rogers v. Ratcliff, 3 Jones, 225; Isler v. Harrison, 71 N. C., 64; Falls v. Gamble, 66 N. C., 455; Yates v. Yates, 81 N. C., 397; Tuttle v. Harrill, 85 N. C., 456. The effect of a judgment where the title to land comes into controversy and is decided is equally an estoppel as if personal property, was the subject matter involved in the suit. Davis v. Higgins, 87 N. C., 298; Johnson v. Pate, 90 N. C., 334 There is no error, and the judgment is affirmed. Affirmed.