Civil action. A number of issues were submitted, but it is only necessary to set out two, viz.:
3d. Is the plaintiff the owner of the tract of land first described in the complaint as Lot No. 1 in the New Lebanon Division? Answer: Yes.
7th. Is the plaintiff the owner of the tract of land described in the complaint as Lot No. 4 in the New Lebanon Division? Answer: No.
The jury assessed the plaintiff's damages at $7,630. From the judgment rendered, the defendant appealed. This action was brought to try the title to certain lands in Camden County known as Lots Nos. 1 and 4 of the New Lebanon Division, a partition of a large body of land made in 1819 among a large number of tenants in common, and recorded in said county.
In apt time the defendant entered a motion to nonsuit, upon the ground that the plaintiff upon all the evidence had failed to show title in himself to the lands in controversy. This motion was overruled, and the defendants duly excepted.
There are a large number of assignments of error in the record, but in the view taken by a majority of the Court, it is only necessary to *Page 137 consider the motion to nonsuit, as we are of opinion that it should have been sustained.
The plaintiff deraigned his title from the New Lebanon partition and offered in evidence no grant from the State. By this division Lot No. 1 was allotted to Enoch Sawyer, who conveyed to Cary Weston. Plaintiff claims by descent from him.
Lot No. 12 of the New Lebanon Division was allotted to Mills (167) and Josiah Riddick, and for the purpose of showing that the defendant claimed Lot No. 12 under Mills Riddick and under said division, plaintiff offered deeds conveying Lot No. 12 from Mills Riddick to Whitehead, and from Whitehead to John L. Roper, and from him to the defendant.
For the purpose of showing an independent source of title, acquired by the defendant long afterwards, the defendant introduced a deed from the State Board of Education to George W. Roper, date 24 October, 1904, and from George W. Roper to defendant, 14 March, 1905. It is admitted that all the lands in controversy are within the boundaries of these deeds.
It is practically admitted, and all the evidence for plaintiff as well as defendant shows that the lands in controversy are swamp lands. The New Lebanon Division refers to and calls these lands a juniper swamp, and plaintiff's witness Lewis testified that the land in controversy is swamp land.
Upon these facts it is plain that unless the plaintiff proved that thelocus in quo had been granted by the State prior to 1825, the title vested in the State Board of Education and passed from it to George W. Roper, and from him to the defendant. Board of Education v. Lumber Co., 158 N.C. 315. Constitution, Art. IX, secs. 9 and 10.
The law presumes that those claiming such lands under the deed of the State Board of Education acquired a good and valid title, and the burden of proof is placed on the adverse party to rebut such presumption by showing a good and valid title in himself. Revisal 1905, sec. 4047; Board ofEducation v. Makely, 139 N.C. 34; Board of Education v. Lumber Co., supra.
No grant from the State to any one covering the land in controversy is in evidence; but to meet this difficulty plaintiff contends that it is admitted in the pleadings (section 1 of amended complaint and section 1 of answer thereto) that the lands in controversy were granted to Benjamin Jones. The answer admits "that on 10 July, 1788, the State of North Carolina issued a grant to one Benjamin Jones; that that appears upon the books found in the office of the Register of deeds of Camden *Page 138
County in Book D, page 363, which purports to be a copy of said (168) grant. The other matters alleged in section 1 are denied."
This section practically denies everything alleged except that a grant to one Benjamin Jones appears on the records of Camden County. It denies the validity of the grant, and that its descriptive words embrace the land in controversy.
We find no evidence in the record tending to prove that the description in the grant covers the land in controversy, although there is evidence that the description in the complaint does.
The plaintiff does not claim title to any part of the lands in controversy by possession. All his testimony negatives such claim. On this point the plaintiff testified: "I never claimed the lands in controversy until one or two years ago, when a man named Johnson came to me about some property in this same Dismal Swamp, situated in Pasquotank County, and told me the Richmond Cedar Works had been in possession long enough to give them title, and that I had only paper title, not actual possession; he wanted to buy it. I employed Mr. Gwathmey to go down and look into it; he dug up the record as to this property in dispute; and then I entered into a contract with the Richmond Cedar Works by which they were to pay a part of the expense of this litigation and to receive a part of whatever money might be recovered in this suit. . . . I had never paid any taxes on this land; so far as I know, my father never paid any taxes on this land; so far as I know, my father never claimed this land."
Therefore we conclude, under the authorities cited, that the defendant has shown a clear title to the land in controversy paramount to that of the plaintiff.
this disposes of the plaintiff's contention that he and the defendant claim under the same common source, to wit, the Lebanon Division, and that defendant cannot deny plaintiff's title.
We have held that defendant has shown an outstanding valid title to thelocus in quo and has connected itself with such title. Mobley v. Griffin,104 N.C. 115; Whissenhunt v. Jones, 78 N.C. 361; Love v. Gates 20 N.C. 498.
(169) But the plaintiff contends that as he claims title to Lot No. 1 under Enoch Sawyer, to whom it was allotted in the New Lebanon Division, and as he has shown mesne conveyances from Mills Riddick to defendant for Lot No. 12, which was allotted to Riddick, that by virtue of the partition proceedings defendant is estopped to deny that plaintiff as the successor in title of Enoch Sawyer is the owner in fee of the land in controversy, and is precluded from setting up this after-acquired paramount title against plaintiff. In support *Page 139 of this position, plaintiff relies upon the principles laid down in Carterv. White, 134 N.C. 466.
We are not disposed to call in question this decision, although it reversed the former decision in the same case (131 N.C. 14), and its correctness was challenged by the present Chief Justice in a dissenting opinion.
We are of opinion that the principle laid down in Carter v. White does not debar a purchaser of lands, who acquired the title of one of the partitioners through mesne conveyances to a part of the land divided, from afterwards acquiring an outstanding and valid legal title to other portions of the tract so divided.
The title which the defendant purchased from the State Board of Education through George W. Roper was an after-acquired outstanding valid title to Lots 1 and 4, and we see nothing in law or morals which debarred defendant from purchasing it. At the very time defendant acquired this title, plaintiff testifies he did not claim these lots in controversy.
In the opinion of the Court in Carter v. White, 134 N.C. 473, it is said: "In the view which we take of the effect of the partition proceedings it is not necessary to decide the effect of this estoppel upon an after-acquired title, and we forbear to express an opinion thereon."
We think the learned counsel for plaintiff in their brief practically admit that the proposition now under consideration is left an open question, when they say: "It is suggested in what is so lucidly enunciated in Carter v. White, that the judgment of the court is conclusive as to an after-acquired title, not only upon the parties, but would also conclude their heirs, assigns, and grantees."
However, that is left an open question, and it may be that the court would hold that the defendant in this case, which is a successor in title, would not be estopped to set up an outstanding paramount (170) title and to claim under it.
It is not necessary to decide this question here, insomuch as there is no paramount outstanding title shown.
That there is a paramount valid title which has been acquired by defendant from the State many years after the New Lebanon Division was made, we have already held.
This title was in no way represented by any of the parties to the partition proceedings, and although the defendant may be a grantee of Lot No. 12, we do not think it is estopped to set up this new and independent title, subsequently acquired, to Lots 1 and 4. 17 A. and E. Enc. (1 Ed.), 819. Henderson v. Wallace, 72 N.C. 451; 16 Cyc., 716; Frey v. Ramsour,66 N.C. 466. *Page 140
We doubt very much that the learned judge who wrote the opinion inCarter v. White intended to deny the right of a grantee of a tract of land allotted to his prior grantor in partition proceedings to acquire an outstanding legal title, or to hold that he would be estopped under all circumstances to deny the title of every partitioner to the tracts allotted to such partitioner in the division.
In commenting upon Carter v. White, the judge who wrote that opinion says: "The decision in that case is based upon the fact that the exact interest of each party was put in issue and settled by the judgment," citing Forder v. Davis, 38 Mo., 107, in which it is said of the judgment: "The partition establishes the title, severs the unity of possession, and gives to each party an absolute possession of his portion." "As a general rule, parties to a judgment are not bound by it is a subsequent controversy between themselves, unless they are adversary parties in the original action; that is to say, a judgment for or against two or more joint parties ordinarily determines nothing as to their respective rights and liabilities as against each other in their own subsequent controversy," citing Black on Judgments, sec. 599; 1 Freeman on Judgments, sec. 158.
(171) The learned judge proceeds to say: "It would work a great wrong to the defendants herein to permit the judgment in the partition proceedings, the only purpose of which was to have Colonel Simmons' one-half interest in the land set apart to him, to divest them of their title to a share of the land, not in any way in litigation. To do so would make estoppel justly odious." McCollum v. Chisholm,146 N.C. 24.
In Harrison v. Ray, 108 N.C. 215, which was a partition by consent wherein the tenants mutually conveyed by deed to each other the several allotments, it was held that the deeds did not operate as an estoppel, except so far as they established the extent of the interest of each tenant in his ancestor's lands.
In Harrington v. Rawls, 131 N.C. 39, it is held that a deed of partition conveys no title, but is simply a severance of the unity of possession.
In Jones v. Myatt, 153 N.C. 230, in the opinion of the Court by Mr.Justice Manning it is said: "It is settled by several decisions of this Court that actual partition merely designates the share of the tenant in common, and allots to him in severalty. It does not create or manufacture any title," citing Carson v. Carson, 122 N.C. 645; Williams v. Lewis,100 N.C. 142.
In other jurisdictions it is held that a judgment in partition is conclusive upon all the parties thereto as to whatever title or claim they *Page 141 had to the land at the time of the rendition of the judgment, but it did not have the legal effect of changing the title nor of vesting any new or additional title in the land allotted and set off to each in severalty.Wade v. Dera, 50 Cal. 376; Christy v. Waterworks, 68 Cal. 73.
At common law, when partition was made pursuant to the writ departitione facienda, and the shares were allotted in severalty, and final judgment was given that the partition be holden, firm and effectual forever, nothing further was necessary; for the partition was completely effected. The judgment or law operated to vest in each party a sole estate in his allotment; but nothing further was wrought than to affirm or ascertain the possession. Cave v. Holford, 3 Ves., 656.
In Indiana it is held that partition proceedings do not settle title, or create a new title, but simply divide into separate shares (172) the land held under existing titles. Miller v. Noble,86 Ind. 528; Elstone v. Piggott, 94 Ind. 24. In this latter case it is said: "It results from these settled rules that the decree in partition does not estop the appellant from asserting the title acquired under the deed issued on the decree of foreclosure."
In commenting upon this subject, Mr. Bigelow says in his work on Estoppel (5 Ed.), p. 345: "It does not in modern times constitute a case of privity for the purpose of estoppel to show that one man holds a conveyance of land from another. The modern grantee, unlike a feoffee, acquires the property for himself, and his faith is not pledged to maintain the title of the grantors. A relation of privity is a relation of dependence, not of independence or of superiority. Between the grantor and grantee the recitals of the deed will doubtless be conclusive evidence in a proper case; but the instrument will not for all purposes prevent the grantee from asserting a paramount title which he has acquired from a third person. And this being the case between the grantor and grantee, it follows that the grantee may assert a title which he has acquired paramount to that of such grantor in a contest with one who claims under the same grantor:" In support of the text, the author cites a large number of authorities.
The same author, referring to a judgment on a writ of partition at common law and a decree in chancery compelling partition, says: "In neither case does the judgment operate beyond the title held at the time of the suit; it does not affect a title afterwards acquired." Page 79, sec. 4; see, also, Embry v. Palmer, 107 U.S. pages 3 to 11.
We think the following additional cases support our views: McClery v.McClery, 65 Me. 177; Macktot v. Dubreuill, 9 Mo., 282; Robertson v.Pickerell, 109 U.S. 608; Blight v. Rochester, 7 Wheaton, 534.
In this last case Chief Justice Marshall says: "It is contended that *Page 142 he is so restrained, because John Dunlop sold to Hunter, and Hunter has conveyed to the present defendant. It is very clear that these (173) sales do not create a legal estoppel. The defendant has executed no deed to prevent him from averring and proving the truth of the case. If he is bound in law to admit a title which has no existence in reality, it is not on the doctrine of estoppel he is bound. It is because by receiving a conveyance of title which is deduced from Dunlop, the moral policy of the law will not permit him to contest that title.
"The vendee acquires the property for himself, and his faith is not pledged to maintain the title of the vendor. The rights of the vendor are intended to be extinguished by the sale, and he has no continuing interest in the maintenance of the title unless he should be called upon in consequence of some covenant or warranty in his deed. The property having become by the sale the property of the vendee, he has a right to fortify that title by the purchase of any other which may protect him in the quiet enjoyment of it. No principle of morality restrains him from doing this; nor is either the letter or spirit of the contract violated by it."
We have been unable to find a single case where a grantee of one of the parties to the partition proceedings purchasing the tract allotted in severalty to his grantor has been held estopped to deny title of another party to a different part of the land divided in the partition proceedings from that acquired from the grantor.
Upon the facts of this case as presented by any view of the evidence we are of opinion: (1) that there is no strict estoppel operating in favor of the plaintiff against the defendant in respect to Lots 1 and 4; (2) that the parties did not claim the same tract of land under the same common source; (3) and that if that were so, the defendant has shown an outstanding legal title paramount and has connected itself with it.
His Honor erred in overruling the motion to nonsuit, and the said motion is sustained.
Error.
CLARK, C. J., concurs in this opinion.