Jones v. . Coffey

Merrimox, J., (after stating the facts). It appears that in-the action of the First National Bank of Charlotte, and others, against the executor of the will of Edmund P. Jones, deceased, and the present plaintiffs, mentioned in the pleadings, the Court had competent jurisdiction of the parties thereto, including the present plaintiffs, and as well of the subject-matter — the land — embraced by it. The land now in controversy was embraced by it, although this was controverted, and sold under a valid decree, so far as appears, the defendants being the purchasers. They paid the purchase money — the sale was confirmed by the Court,- and under its direction, the receiver executed a proper deed of conveyance to the defendants. In that action the rights of the plaintiffs here contended for, came directly in question, and they ought then to have set up their title to the land they now seek to recover. As they did not, they are concluded by the record made against them; they are bound by it so long as the judgment therein remains unreversed, and they cannot attack it collaterally in the present action. Burke v. Elliott, 4 Ired., 355; Armfield v. Moore, Bus., 157; Gay v. Stancell, 76 N. C., 369; Morriss v. Gentry, 89 N. C., 248. The plaintiffs contend, that if the land they seek to recover by this action was embraced by and sold under the decree in the action mentioned, it was so by mistake and misapprehension. It appears that that action is not yet de *350 termined. If so, the plaintiffs ought to seek their remedy,' if they have any, in it; if it is determined, then by an independent action. Long v. Jarratt, 94 N. C., 443; Maxwell v. Blair, 95 N. C., 317, and the cases there cited. There is error. The judgment must be reversed, and judgment entered below for the defendants. To that end, let this opinion be certified to the Superior Court according to law. It is so ordered. Error. Reversed.