Coble v. . Clapp , 54 N.C. 173 ( 1854 )

The bill was filed for the partition of a tract of land in the county of Guilford. The questions made in the case are fully presented in the opinion of the Court. The bill is filed to procure the partition of the tract of land set forth in it. George Faust was the owner of the land, and by his last will devised the same to his two granddaughters, Sally Holt, the wife of Thomas Holt, and Barbara C., who intermarried with John W. Kirkman. These two females were thus tenants in common of the premises. In 1838 Thomas Holt and his wife Sally filed a petition in the Court of Pleas and Quarter Sessions of Guilford County, within which the land lay, against John W. Kirkman and his wife Barbara, to procure a partition of the premises. At February Term, 1839, commissioners were appointed to divide the land, who made their report to May Term following, which was, by a decree of the Court of the same term, confirmed, and the division ordered to be registered. During the pendency of this petition, to wit, in April, 1839, Thomas Holt and Sally Holt, his wife, sold their undivided moiety of the land to the plaintiff, and in their deed of conveyance they describe it "as their undivided interest, it being one-half, in the following piece or parcel of land," etc., then setting out the metes and bounds of the whole tract. In 1847 John W. Kirkman and his wife sold and conveyed all their interest in the said land to the defendant Clapp, and in describing the premises they use the same terms and mention the same boundaries as are contained in the deed to Coble. In his bill the plaintiff alleges that he is not bound by the decree of the County Court, for two reasons: the first, because, as he alleges, he was no party to the proceedings; and, secondly, because the defendant is estopped by his deed from Kirkman and wife to deny that the land was, at the time of his purchase, still undivided. As to the first point, it cannot avail the plaintiff. The decree in the County Court bound all parties and privies. The plaintiff, by his purchase, became a privy in estate with Holt and wife. Nor can he be heard to say he had no notice of the pendency of the suit — a lis pendens is notice to all the world — and the plaintiff, upon a proper representation to the Court, might have been made a party of record, after his purchase; and thereby entitle himself to examine testimony, or take an appeal, if (175) dissatisfied with the report of the Commissioners. But he cannot, in this way, attack the correctness of the judgment of the County Court. Until reversed by a regular judgment, it imports absolute verity, and cannot be controverted. As to the second ground, there is no estoppel on the defendant to plead the judgment. It is true that when he received his conveyance from Kirkman and his wife the land had been duly divided between the parties, and they were seized each of his moiety in severalty — and though the description in the deed is not literally correct, and does not set out the metes and bounds of the moiety — yet the description given does embrace it. How it can estop the defendant to show, by the judgment of the County Court, the partition of the land, we cannot well see.

It is not necessary to decide whether the judgment of the County Court can now be reversed at the instance of the plaintiff, but unreversed, it is binding on all the parties to it, and their privies.

It appearing, then, according to the plaintiff's own showing, that there had been a partition of the land between the tenants in common, under a decree of a Court of competent jurisdiction, the effect of which is claimed and insisted on by the defendant, the plaintiff's bill cannot be sustained, and must be

PER CURIAM. Dismissed with costs.

Cited: Pullen v. Mining Co., 71 N.C. 565; Dickens v. Long, 109 N.C. 172;Western v. Lumber Co., 162 N.C. 192.

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