In Wagon Co. v. Byrd, 119 N.C. 463, it is said: "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 judicata.Summary of this case from Moore v. Harkins
(September Term, 1896.)
Writ of Assistance — Practice — Res Judicata — Estoppel.
1. The judgment or decree of a court of competent jurisdiction is conclusive not only as to the subject-matter actually determined thereby but also as to every other matter which properly belonged to the subject in litigation, and which the parties, by the exercise of reasonable diligence, might have brought forward at the time and had determined respecting it.
2. In an action to foreclose a mortgage against B., one M. intervened and by his answer denied the allegations of the complaint, and alleged, as a further defense why decree of sale should not be made, that he was the owner in fee and in possession (through B., his tenant) of the land. At the trial he assented to the issues tendered by the plaintiff, which did not include the one raised as to his title. There was a decree of foreclosure (from which he failed to prosecute an appeal), a sale, confirmation and conveyance by the commissioner: Held, that the plea of sole seizin by M., not being a counterclaim, was denied by operation of law, and thus an issue as to the title was raised by the pleadings which M. should have tendered and supported by proof, and having neglected to do so he is estopped by the judgment in the cause.
3. In such case the purchaser at the sale is entitled to a writ of assistance to place him in possession of the land.
ACTION heard before Norwood, J., at Spring Term, 1896, of WILKES, on a motion for a writ of assistance by the plaintiff, the Piedmont Wagon Company, which had purchased the land sold under a decree of foreclosure. The motion was refused and plaintiff appealed. The facts appear in the opinion of Associate Justice CLARK.
W. W. Barber and T. B. Finley for plaintiffs (appellants).
No counsel contra.
(FAIRCLOTH, C. J., dissents, arguendo, in which FURCHES, J., concurs.)
This was an action brought against the mortgagors (461) to foreclose a mortgage. J. O. Martin, who was not one of the mortgagors, on his 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 asking thereupon that the action be dismissed. This plea of sole seizin in himself, not being a counterclaim, 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 rendered 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, (2 Ed.), page 357, and if he did not he can not complain of the consequences of his own 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 (462) do so judgment properly went against him.
That case was "on all-fours" with this, being an interpleader who set up title to the property (and also possession, as in this case), 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 estoppel 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 estopples 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 judicata. This rule is thus stated in 1 Herman 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 (463) often oppressive. It might tend to unsettle all the determinations of law and open a door for infinite vexation. The rule is founded on sound principle." And the 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 every point which properly belonged to the subject in litigation and which the parties, exercising reasonable diligence, might have brought forward at the time and determined respecting it." It has been urged that by the decision of 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 pleading was whether it was a valid sale, and the Court observes that it would have been "if a 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 affidavit in this motion, which is not denied, that the interpleader assented to the issues as tendered. Under these circumstances, when the land was sold the purchaser, seeing that Martin was a party to the proceeding, that (464) he had filed his answer setting up 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 full 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 open 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 obiter and are overruled.