dissenting. The identical point now presented was passed upon in the former appeal in this case, 131 N. C., 14, and the decision then made by a unanimous Court should be the law of this case. It was there said: “In partition proceedings between tenants in common no title passes, only the unity of possession is dissolved and the title vests in severalty, the common source of title resting undisturbed.” Lindsay v. Beaman, 128 N. C., 189. Land’s interest never passed to plaintiffs and was not represented, nor was he a party; therefore he was not bound by the action or special proceeding. As to him they were void, and he had a right of entry and possession equally with the other tenants in common, whomsoever they might be. By his deed passed all the right of Land to the defendant, who then stood in Land’s shoes, and had all the rights and remedies of Land, independent of and notwithstanding the judgment in said action and decree of partition
Thus the identical point now presented has been decided, and in this action the matter is res judicata. It cannot be presented by a second appeal. The remedy, if error was committed by this Court, would have been by a petition to rehear. Holley v. Smith, 132 N. C., 36; Perry v. Railroad, 129 N. C., 333, and cases there cited. Nor does it vary this rule that the former decision was upon an appeal from the continuance of the restraining order in this cause, and this appeal comes up on appeal from a final judgment. The present appeal is solely upon exceptions that the Judge charged in exact accordance with the former ruling of this Court and his refusal to charge contrary thereto. Setzer v. Setzer, 129 N. C., 296.
*480Besides, tbe former decision was correct. Richardson v. Cambridge, 79 Am. Dec., 767, is a case on all-fours and sustains our former ruling. See also, Christy v. Waterworks, 68 Cal., 73.
In 17 A. & E. Enc., 819 (1 Ed.), it is said: “A party to a partition wbo subsequently acquires a new and independent title wbicb was in no way represented by any of tbe parties to tbe suit may be permitted to assert it.” Henderson v. Wallace, 72 N. C., 451, bolds that one not a party or privy to partition proceedings is in no way affected by tbe decree. To same effect 21 A. & E. (2 Ed.), 1186: “Tbe familiar principle that judgments and decrees bind only parties and privies is as applicable to judicial proceedings in partition as to other litigation,” and cases there cited. Land not having been a party to tbe partition decree in 1895, bis interest was not affected by it. He could recover it or sell it to another, and tbe defendant could acquire and assert it as well as another. This is not tbe case of “feeding an estoppel.”
In Harrison v. Ray, 108 N. C., 215, 11 L. R. A., 722, 23 Am. St. Rep., 57, it is held that in voluntary actual partition tbe deeds convey no title, but simply ascertain by metes and bounds tbe interest of each. This has been cited and affirmed by Douglas, Jin Carson v. Carson, 122 N. C., at p. 648; by Shepherd, J., in Fort v. Allen, 110 N. C., at p. 192, and again as recently as Harrington v. Rawls, 131 N. C., 40, and was stated also in Lindsay v. Beaman, 128 N. C., 189. In 21 Am. & Eng., 1193, it is said that “'Both in voluntary and judicial partition, tbe decree does not create or divest any title to, or other right in, tbe property, but merely severs tbe unity of possession and determines tbe share wbicb each tenant is entitled to possess in severalty.”
Tbe title of Land could not be divested by tbe proceeding to which he was not a party, and tbe purchase of it by *481White, after the decree, was not the purchase of an outstanding incumbrance or title, but the ptirchase of an intact interest in the property which was not the subject of the litigation and decree to which White had been a party in 1895. In that proceeding he only set up the title to the interest he then had. The interest of Land would be good if now held by him, and White cannot be affected by that decree as assignee of Land’s interest, any more than would be any other purchaser from Land.