Stancil v. . Wilder

Schenck, J. Tbe question posed by this appeal is: Mas tbe foreclosure action, in which M. J. Milder was plaintiff and Lewis M. Stancil and others were defendants, res judicata in tbe present action, wherein Lewis M. Stancil is plaintiff and M. J. Milder is defendant, to have tbe defendant declared a trustee bolding title for tbe plaintiff? Me are of the opinion, and so bold, that tbe answer is in tbe negative. No reference is made in tbe pleadings in tbe foreclosure action instituted by M. J. Milder against Lewis M. Stancil to tbe agreement between tbe said Stancil and Milder alleged in tbe complaint as tbe basis of tbe present action. Tbe agreement alleged in tbe present action was in no wise put in issue in tbe foreclosure action, and was not- necessarily involved therein. Mbile it may be conceded that tbe alleged agreement between tbe plaintiff and defendant might have been pleaded in tbe foreclosure action, and might have been adjudicated therein, still tbe fact remains that it was not so pleaded, and tbe pleading thereof was not necessary to determine tbe issues involved .in tbe foreclosure action, mainly, tbe indebtedness of tbe defendant Stancil to tbe Land Bank, tbe assignment thereof to the plaintiff Milder, and the default in tbe payment thereof by the defendant Stancil. *708 The judgment entered in the foreclosure action was decisive only of the points raised by the pleadings, or which might properly he predicated upon them, and does not embrace any causes of action which might have been brought into the litigation, hut which were neither actually joined nor embraced in the pleadings. The apposite law in the present action is clearly and succinctly stated in Tyler v. Capehart, 125 N. C., 64, 34 S. E., 108, quoted with approval in Shakespeare v. Land Co., 144 N. C., 516, 57 S. E., 213; and in Jefferson v. Sales Corp., 220 N. C., 76, 16 S. E. (2d), 462, as follows: “The judgment is decisive of the points raised by the pleadings or which might properly be predicated on them. This certainly does not embrace any matters which might have been brought into the litigation, or any causes of action which plaintiff might have joined, but which, in fact, are neither joined nor embraced in the pleadings.” Without intending to express any opinion affecting the ultimate disposition of the case, we reverse the judgment below and direct a new trial. Reversed,