Wilkins v. . Suttles

MacRae, J.: “ Where a person enters into a tract of land under a written contract to purchase it, he becomes a tenant at will to the bargainor and is estopped from denying his title in an action of ejectment .brought against him to recover the possession.” Dowd v. Gilchrist, 1 Jones, 353. *556 “An estoppel is the conclusive ascertainment of a fact by the parties, so that it no longer can be controverted between them. It is not solel}'- the result of the act of the parties themselves, but may be by the adjudication of a Court appointed to try the facts. After an estoppel has thus arisen if the existence of the fact contrary to it is averred by one of the parties the other may show it b}^ pleading if it be not already apparent upon the record, and pray judgment if it shall be controverted. But if the party seeking-the benefit of the estoppel will not rely upon it, but will answer to the fact and again put it in issue, the estoppel, when offered in evidence to the jury, loses its conclusive character, becomes mere evidence and like all other evidence may be repelled by opposite proof, and the jury may, upon the whole evidence, find the truth. This is the rule only in cases where the party relying upon it has had an opportunity of pleading it as an estoppel and does not do^ so, but takes issue on the fact. Where he has no opportunity of pleading it as an estoppel, as in actions of ejectment and others where the pleadings are general, there the estoppel retains its exclusive character and the juiy must find according to it. This is common learning and common sense; bjr departing from it we are involved in many difficulties and absurdities.” Woodhouse v. Williams, 3 Dev., 508. It will be observed that the pleadings in this case are not general as in the old action of ejectment, or as they may be now in an action for the recovery of the possession of land; but the plaintiff undertakes in his complaint to set out not only that he is the owner and entitled to the possession of the land described, but he goes further and alleges that the defendant entered into possession of the land under contract of purchase with the plaintiff’s ancestor and, therefore, as his tenant, and that he has never complied with his contract and ])aid for the land. *557 The defendant in liis answer sets, up as a defence to the .action that his (defendant’s) father, Isaac Suttles, in 1855 entered under a contract of purchase with the plaintiff’s ancestor, now deceased, and that the purchase-money was fully paid in the life-time of his father, and that the defendant and others are heirs of said Isaac Suttles; that after the death of said Isaac Suttles the plaintiff’s ancestor fraudulently procured this defendant, in ignorance that his father had already paid for it, to make a new contract to purchase the land. The plaintiff in his reply admits the contract between Isaac Suttles and plaintiff’s ancestor for the purchase of the land, and denies that the defendant or those under whom lie claims ever paid for the land or any portion of the purchase-money, and alleges that the same is still due and owing, and denies the allegations of fraud and all other material allegations of the answer. But the plaintiff does not plead that the defendant is estopped to deny that he is the plaintiff’s tenant by reason of' his occupation of the land under the contract of purchase; he joins issue on the facts alleged by the defendant as his ground for substantive relief and thereby submits to the jury to pass upon the truth of the matter. Such being the state of the pleadings, his Honor submitted the single cpiestion whether Isaac Suttles had paid for the land, upon which the answer to the other two issues depended. If the estoppel had been pleaded it would have been proper to have submitted the second issue tendered by defendant, for an affirmative response to this issue -would have relieved him from the estoppel. In view of the admissions of the parties the issues submitted seem to have -covered all their contentions. Upon the intimations of his Honor the plaintiff asked to be allowed to take a nonsuit, which was denied. *558 The defendant had set up in his answer a counter-claim for substantive relief. In this class of cases there is the exception to the general rule, as stated in Bank v. Stewart, 93 N. C., 402, that the plaintiff may submit to a nonsuit at any time before verdict. Bynum v. Powe, 97 N. C., 374. No Error.