Piedmont Wagon Co. v. Byrd

Clabic, J.: This was an action brought against the mortgagors to foreclose a mortgage. J. 0. Martin, who was not one of the mortgagors, on bis own application was made a party defendant, and filed his answer denying the complaint and alleged, as a further defense why decree of sale should not be made, “ that he is the owner in fee and in lawful possession of the lands described in the complaint,’’alleging further that the mortgagors were merely his tenants and without any title to the land, and ashing thereupon that the action be dismissed. This plea of sole seizin in himself, not being a counter-claim, was denied by operation of law, (The Code, Section 268,) and thus an issue as to said Martin’s title was raised on the pleadings. Bank v. Charlotte, 75 N. C., 45. At the trial he assented to the issues which were tendered by the plaintiff, though the one raised as to his title by his answer was not included, and judgment for sale of the land being '-endered upon the verdict he appealed but did not prosecute his appeal. Martin might possibly have stayed out of the case, but he saw proper to intervene and raised the issue of title and possession in himself, and that the other defendants were merely his tenants in order to defeat a decree that said lands be sold. This new matter of defense was therefore in litigation upon his allegation, and it was incumbent upon him to tender the proper issue, Maxwell v. McIver, 113 N. C., 288; Kidder v. McIlhenny, 81 N. C., 123 ; McDonald v. Carson, 95 N. C., 377; Walker v. Scott, 106 N. C., 56, and numerous other cases cited in Clark’s Code, (2d Ed.,) page 357, ar.d if he did not he-cannot complain of the consequences of his own — 462 — neglect. It was incumbent, upon him not only to tender the issue raised by his allegation of title but to support it by proof, (Wallace v. Robeson, 100 N. C., 206,) and as he failed to do so judgment properly went against him. That case was “on all-fours” with this, being an inter-pleader -who set up title to the property, (and also possession, as in this ease,) and failed to introduce evidence to support his allegations. The defendant Martin, after coming into the action and raising by his pleadings the issue of title and possession, should have tendered the issue and offered evidence; and “ not having spoken when he should have been heard, should not now be heard when he should be silent.” He is estopped by the judgment herein, which decreed the sale of the land as the property of the other defendants. To hold otherwise would be to permit him to trifle with the Court and with the rights of the purchaser, who should rely upon the decree of sale as at least conclusive upon all persons who were parties to the action in which it was rendered. The principles governing estoppels by judgment are established by a long line of decisions in this and other States, and we have no desire to take a new departure which will shake the.long-settled law as to res judieata. This rule is thus stated in 1 Herman on Estoppel, Sec. 122, and is fortified by a long list of leading authorities there cited : “ The judgment or decree of a court possessing competent jurisdiction is final as to the subject matter thereby determined. The principle extends further. It is not only final as to the matter actually determined but as to every other matter which the parties might litigate in the cause, and which they might have had decided. This extent of the rule can impose no hardship. It requires no more than a reasonable degree of vigilance and attention ; a different course might be dangerous and often — 463 — oppressive. It might teed to unsettle all the determinations of law and open a door for infinite vexation. The rule is founded on sound principle.” And tlie same authority, Section 123, says: “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 eveiy point which properly belonged to the subject in litigation and which theparties, exercising reasonable diligence, might have brought forward at the time and determined respecting it.” It has been urged that by the decision in Jordan v. Farthing, 117 N. C., 181, this Court intended to abandon this beaten path and strike out a new departure. Such was not our intention. In that case land having been sold under a mortgage, the purchaser brought his action against the mortgagor and made the mortgagee additional party plaintiff. The only question raised by the pleadings was whether it was a valid sale, and the Court observes that it would have been “ if the mortgagor had owed only one dollar or any other amount, and that it was out of the question to contend that the accounts of the mortgagor and mortgagee (a long course of dealings outside the mortgage transaction) had been introduced in that action” between the purchaser of the land and the mortgagor. But here we have an entirely different case. In a proceeding to foreclose Martin properly interpleads, (The Code, Sec. 267,) claiming that he, and not the mortgagors, is the owner of the land, and that therefore the foreclosure should not be ordered. The title of the interpleader having been thus put in issue, the trial is had, the foreclosure sale is ordered, and the interpleader appeals and afterwards abandons his appeal. It also appears by affidavitin this motion, which is not denied that the interpleader assented to the issues as tendered. Under these circumstances, when the land was sold the — 464 — purchaser, seeing that Martin was a party to the proceeding, that he had filed his answer setting np that there should be no sale because the title was in himself, and that after the trial the court had decreed a foreclosure, was entitled to rely'upon the principle that the judgment binds all parties to it, certainly to the fall scope of the points raised by the pleadings, and was not required to go into the minutiae of the trial to ascertain whether each and every of the parties proposed proper issues or in opeu court abandoned or waived his right to insist upon them. The parties to’the action are equally entitled to regard the trial and judgment as decisive of the points raised by the pleadings, or which might properly be predicated upon them. Jones v. Beaman, 117 N. C., 259, so far as the facts of that case are concerned, is distinguishable from the present on, the same grounds as Jordan v. Farthing, supra, and so far as it differs from the principles herein stated its expressions were merely oloiter and are overruled. The writ of Assistance should therefore issue. Exum v. Baker, 115 N. C., 242 ; Coor v. Smith, 107 N. C., 430 ; Knight v. Houghtalling, 94 N. C., 408. Reversed.