Stancill v. . James

Faircloth, C. J. In this action of trespass the plaintiff alleges that defendant has cut his timber trees to his damage, etc. Defendant admits cutting and hauling off the said trees, but denies that plaintiff is the owner of the land on which the trees were growing. Plaintiff in his complaint describes a large tract containing 400 acres. The defendant describes by metes and bounds a tract of 33 acres, on which the trees were cut, and claims to be the owner* thereof, and produces his title deeds, etc. The whole controversy is the ownership of these- 33 acres, which we understand are embraced by the description of tlie. larger tract. In the course of the trial the plaintiff offered in evidence^the record of an action by him against the defendant and': two others for damages in cutting his trees prior toi 1892, in-which a judgment was entered in favor of the plaintiff. The *194 regularity of the proceedings set out in this record is not denied. The introduction of this record as evidence was objected to by defendant. Plaintiff did not offer this record as a link in his title, but only as an estoppel on the defendant to deny or dispute plaintiff’s title. Defendant excepted to the admission of the record and judgment, on the ground that plaintiff had filed no plea of estoppel. Defendant, as a witness in his own behalf, said “he gave the same testimony as to ownership and possession in former trial, that he did here. That this is same land and same title that was presented by defendant and passed upon in former trial. That he had cut no timber since last suit was tried, but had cut timber on the land since last suit was commenced.” We then have this question: In an action of trespass and an answer of general denial, with no special plea, can the plaintiff, for the purpose of an estoppel, introduce as evidence the record and judgment in a former trial, between the same parties and involving the same subject-matter, and similar pleadings, without pleading the estoppel ? This question has not been heretofore passed on by this Court, and we remember that technical pleadings, formerly, were close!) observed by courts. Bigelow on Estoppel (5th Ed.), pp. G97, 698, 699, devotes a chapter of three pages to this precise question, and refers to' the old and modern practice and the decisions of each period. The earliest case referred to is Goddard’s case, 2 Coke, 4. This, and the succeeding cases, hold that an estoppel must be pleaded, and that the judgment as evidence was conclusive in England and in America. At the time of Coke and those decisions, the jurors were themselves witnesses, and were sworn as such to speak the truth,- and must observe their oath. In this fact the doctrine <>£ Goddard’s case is supposed to' have had its origin as well as in technical pleading. *195 Since the decision in Duchess of Kingston's Case, 2 Smith’s L. C., and the transition' in the jury system, the tendency of decisions in America has been strongly the other way. Bigelow shows, however, by citing cases that in our sister States the courts are much divided. All the cases agree that the judgment in the former case, when introduced either under a plea or as evidence, is conclusive on both Court and jury, the record being regular. The modern doctrine, to which Mr. Bigelow gives the weight of his opinion, is that when an estoppel is relied on as a defense to the action, it must be pleaded specially, and this Court frequently has so decided. Harrison v. Hoff, 102 N. C., 126. Further, that when the general issue (answer now) alone is-plead in ejectment or trespass, etc., or when the plaintiff has had no opportunity to plead estoppel, or has not been required to do so-, he may introduce the record in the first suit as evidence without special plea. This seems to- be the rule of all our State courts, which have adopted the modern doctrine as appears from numerous cases cited in the carefully prepared brief of plaintiff’s counsel, and in the notes to Bigelow’s text. This view commends itself to our minds. In trespass or ejectment we do not require the plaintiff to set out his title. Tt is sufficient to allege ownership. A plea of estoppel in the complaint, in anticipation of tire answer, would seem out of place. The defendant, so far as then appears, may admit owner-ship in the plaintiff and deny the trespass. We can see no reason why the record and judgment may not come in ¿s evidence like any other proof. It is no surprise, as the existence of the judgment is equally well known to each party. It is common to allow plaintiff by record or by deed to show that defendant claims under the same grantor as the plaintiff, and thereby save trouble *196 and expedite' the trial without prejudice to either party. The proof in either case is conclusive, and prevents vexations litigation. The other exceptions present no other important questions and need not be considered. We, therefore, find no error in the' record. Affirmed.