concurring: The plaintiff Has offered no evidence of possession in Mmself, or in any one under whom be claims, and it is conceded that his title to the land in controversy depends upon the estoppel of the partition proceeding of 1815.
Do these proceedings prevent the defendant from denying the title of the plaintiff, because of the implied warranty arising from a compulsory partition between tenants in common, or because of an estoppel by the judgment in the proceedings ?
There are several principles in regard to compulsory partition at common law that seem to be well settled:
1. Partition could only be compelled as between parceners, and not between joint tenants and tenants in common.
2. If a portion of the estate held in coparcenary was lost before partition, the loss fell equally on all, and they were not to be in a worse plight after partition.
3. That there was an implied warranty and a condition annexed to the partition.
4. In the event of eviction after partition by suit, the remedy was upon the implied warranty to have recompense pro rata for the loss; but if the eviction.was by entry without suit, the remedy was to enter upon the shares of the other tenants and have a reallotment.
5. That by the statutes of 31 Henry VIII and 32 Henry VIII, the right of compulsory partition was extended to tenants in common and in joint tenancy, but that under these statutes the remedy of a tenant in common or of a joint tenant, in the event of eviction, was limited to obtaining recompense upon the implied warranty.
6. That the condition and the implied warranty depended on privity of estate, and if one conveyed his share after partition and his grantee was evicted, he had no remedy against the others, although one who retained his share could, after eviction, have his remedy against a grantee.
The most comprehensive and learned discussion of the subject I have found is in Sawyers v. Cator, 8 Hump., 256 (Tenn.), 47 A. D., 608, in which Judge Turley treats of it historically and in the light of reason and authority.
*175The last proposition, which seems to be well sustained, bears directly upon the case before us, because if the condition and the implied warranty depend on privity of estate, and if this privity is broken by an alienation, and the grantee is without remedy upon the condition or the implied warranty, the plaintiff in this case cannot rely upon the implied warranty against the defendant, as he claims title by descent from a grantee of one to whom shares were allotted.
In Sawyers v. Cator, supra, Judge Turley says: “But this condition and implied warranty holds only in privity of estate, and, therefore, if either parcener aliens in fee, and the alienee is evicted, the aliening parcener cannot enter on the other allotment, because by the alienation she has dismissed herself from having any part of the tenements as parceners, by thus severing the connection which previously existed (Allnatt on Partition, 159), and my'Lord Coke says that when the whole privity of estate between coparceners is destroyed, there ceases to be any recompense to be expected, either upon the condition in law or the implied warranty. Co. Lit., 174a. Yet it is otherwise if the privity be not wholly destroyed; for instance, supposing the alienation to be for years, for life, or entail; then, on account of the reversion, the parcener whose alienee is evicted shall enter on the other part. Ib., 173b. The reasoning which would prevent the aliening parcener from entry or vouching upon the warranty in cases of eviction applies with greater force to the alienee, who is a stranger in blood, and who unquestionably could not enter or vouch.”
This is approved in Smith v. Sweringer, 26 Mo., 567, as follows : “The doctrine of implied warranty on a compelled partition among coparceners is not free from obscurity in some of its details, but it seems to be a part of that doctrine as known in England and adopted in some portions of this country, that when the privity of estate is destroyed by an alienation, neither the coparcener nor the alienee has any recourse upon the remaining coparceners. (Allnatt, sec. 3; Sawyers v. Cator, 8 Hump., 256).”
In 1 Wash, on Real Property, ch. 13, see. 7, the author declares the same principle: “If, after the partition has been *176made, one of the parties is evicted of bis property by a paramount title, the partition as to him is defeated at his election, and he may enter upon the shares of the others as if none had been made, and have a new partition of the premises. But this right does not extend to the alienee of one of these tenants, because by such alienation the privity of estate between them and the holder of his share is destroyed. Nor can the alienee himself enter upon the shares of the other tenants in such a case and defeat the partition.” And this is quoted with approval in Kitchen v. Patrick, 32 S. C., 433: “But the same writer ("Wash. Real Prop.) says in the very next paragraph: ‘This right does not extend to the alienee of one of these tenants, because by such alienation the privity of estate between them and the holder of his share is destroyed.’ Now, unquestionably, when the plaintiff bought the interest of the three Mobleys at the sheriff’s sale, he became their alienee, and the qualification above stated would apply.”
When it is remembered that the doctrine of implied warranty arose from the right to compulsory partition among co-parceners, and that it was imposed upon tenants in common when the same right was conferred on them, the case of Weiser v. Weiser, 5 Watts,. 279 (Pa.), 30 A. D., 318, is also authority for this position, where the Court says: “The implied warranty in partition between coparceners was only in privity, for none shall vouch by force of it, except the parties to the partition, or their heirs, and no assignee. Bustard's case, 4 Co., 121; Litt., sec. 262. And Lord Coke says: ‘When the whole privity between coparceners is destroyed, there ceases any recompense to be expected, either upon the condition in law or warranty in law by force of the partition.’ 1 Inst., 174a.”
Jones v. Bigstaff, 44 Am. St. Rep., 245 (95 Ky., 395), is to the same effect, whese it is said: “It is maintained by counsel for the appellants that an implied warranty of the title arising by operation of law, or from the statute, upon the making of a partition by the judgment of a court of competent jurisdiction, like an express covenant of warranty, runs with the land, and, therefore, the alienee of one petitioner or one of the tenants in common, when rightfully evicted, may maintain the action for *177contribution. In Venable v. Beauchamp, 3 Dana, 321, 28 Am. Dec., 74, it is said: ‘To every partition of land the law annexes an implied warranty, whether expressed in the deed or not. Each partitioner becomes the warrantor of the other, but, as said in the case cited, the warranty in such cases is special, not only with re'gar'd to the person or persons who may take advantage of it, but also with regard to the amount of recompense.’ Does the privity exist between the heirs of one of the tenants, dead, and the surviving tenants, and does it extend further, and authorize a recovery by the vendee of one of the tenants after partition and an eviction by a superior title? Where the tenant, whether holding as a coparcener, joint tenant, or in common, dies, his holding as against his cotenants, with reference to the joint title to land, passes to the heir, either for the purpose of demanding partition or exacting contribution where there has been a partition and an eviction. The privity of estate is not destroyed by the death of one of the tenants, whose right and title pass by operation of law to his heirs. Their right to recover, if the ancestor could, is not doubted, but we cannot well see how the implied warranty passes to the alienee or vendee. In the well considered case of Sawyers v. Cator, 8 Hump., 280, 47 Am. Dec., 608, Turley, J., says: ‘This implied warranty holds only in privity of estate, and, therefore, if either parcener aliens in fee and the alienee is evicted, the aliening partner cannot enter on the other allotment, because by the alienation she has dismissed herself from having any part of the tenements as parcener, by thus severing the connection which previously existed.’ It is well settled that parties to a partition, whether coparceners, joint tenants, or tenants in common, are liable upon an implied warranty of title, when loss occurs after partition, and that this implied warranty does not, like an express covenant, run with the land.”
It would seem, therefore, that the plaintiff cannot avail himself of the implied warranty, and that the question remaining for consideration is, whether the adjudication in the partition proceeding estops the defendant to deny the title of the plaintiff. We may, I think, eliminate the suggestion at the outset, *178that if an estate less than a fee simple was claimed by tbe tenants in common, there is no evidence it is not still outstanding, because the petition was filed in 1815, ninety-eight years ago, and at that time the youngest petitioner must have been 21 years of age, as there is no allegation of nonage, and no party was represented by a guardian ad litem, and we may safely assume that one born one hundred and nineteen years ago is now dead, particularly when the plaintiff does not contend otherwise.
The estoppel cannot extend beyond the estate passed upon and adjudicated, or necessary to sustain the judgment, and if that estate was less than a fee simple, and has expired by lapse of time, the plaintiff must fail in his action, as the burden is on him to prove title, and he has shown none, outside of the estoppel.
If so, the real question on this branch of the case is, whether it was adjudicated in the partition proceeding that the tenants in common held in fee simple. Some of the authorities hold that judgments estop, not only as to matters litigated, but also as to those which might have been litigated, while others confine the effect of the judgment to the facts in issue. Both rules are correct, but they are applicable to a different state of facts, and the distinction between the two is clearly drawn in Cromwell v. County of Sac, 94 U. S., 352, where the Court says: '“In considering"the operation of this judgment, it should be borne in mind, as stated by counsel, that there is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand and its effect as an esto}3pel in another action between the same parties upon a 'different claim or cause of action. In the former case the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. Thus, for example, a judgment rendered upon a promissory note is conclusive as to the *179validity of tbe instrument and the amount due upon it, although it may be subsequently alleged that perfect defenses actually existed, of which no proof was offered, such as forgery, want of consideration, or payment. If such defenses are not presented in the action, and established by competent evidence, the subsequent allegation of their existence is of no legal consequence. The judgment is as conclusive, so far as future proceedings at law are concerned, as though the defenses never existed. The language, therefore, which is so often used, that a judgment estops, not only as to every ground of recovery or defense actually presented in the action, but also as to every ground which might have been presented, is strictly accurate, when applied to the demand or claim in controversy. Such demand or claim, having passed into judgment, cannot again be brought into litigation between the parties in proceedings at law upon any ground whatever.
“But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined. Only upon such matters is the judgment conclusive in another action.”
Our case belongs to the second branch of the rule, which was applied in Coltraine v. Laughlin, 157 N. C., 287, in which, the Court quoted with approval from Capeheart’s case, 125 N. C., 64, that, “A judgment is decisive of the points raised by the pleadings, or which might be properly predicated upon them, but does not embrace any matters which might have been brought into the litigation, or causes of action which the plaintiff might have joined, but which, in fact, are neither joined nor embraced by the pleadings.”
*180If so, the question before us is still further narrowed to the single inquiry as to the estate actually litigated and adjudicated in the partition proceedings.
In the consideration of this question it may be accepted:
1. That at common law, as the only unity between tenants in common was one of possession, the judgment in partition had no effect except to sever the possession, and did not operate upon the title.
2. That at common law and now, partition may be had of estates less than a fee simple.
3. That statutes have been passed in the different States which authorize an adjudication of title in partition proceedings.
4. That under the statutes of this State, as they exist now, persons “claiming real estate as tenants in common” may have partition; that upon a petition being filed, the court may appoint commissioners “to divide and apportion such real estate among the several tenants in common”; that the commissioners shall partition the land “among the tenants in common, according to their respective rights and interests therein, by dividing the land into equal shares in point of value as near as possible,” and shall make report, which, when confirmed, “shall be binding among and between the claimants, their heirs and assigns,” and that these statutes were substantially in force in 1815.
5. That when title is put in issue under the statute, the judgment is an estoppel as to that title.
Mr. Freeman, the author of the work on Cotenancy and Partition, says in 30 Cyc., 310, in reference to the last proposition: “We have hereinbefore shown that, in many of the States, title may be put in issue and determined in suit for partition. We may assume that, even in those States, the title is not put in issue merely by the allegations necessary for a declaration in partition at common law, and that where nothing is known about the pleadings in such a suit, it will be presumed that title was not put in issue by them, nor determined in any judgment based on them. We apprehend, however, that whenever plaintiff alleges himself to be the owner in fee, or of any specified estate, or avers any other ultimate fact under which he is enti-*181tied to relief, it becomes tbe duty of defendant either to concede or take issue with the allegation or averment, and that the judgment in the action will be as conclusive as it would be upon a like issue in any other action.”
The Supreme Court of Indiana, discussing the same subject, says in Miller v. Noble, 86 Ind., 530: “In ordinary proceedings it is only necessary to allege and prove such a title as entitles the party to a division of the land. The adjudication in such a case goes no further than to declare that such a right is shown as will support partition and to allot the shares to the cotenants entitled to them. If a conclusive adjudication upon the character of the title is desired, issue must be formed directly and fully presenting that question for decision,” and in Green v. Brown, 146 Ind., 9: “A question of title is not, ordinarily, presumed to be in issue in partition proceedings; on the contrary, the presumption is that title is not in issue.”
In the absence of authority, the language of our statute would seem to lead to the same conclusion, that there is no adjudication of title unless directly in issue.
It is not required thereunder that the estate owned shall be alleged, and any persons claiming as tenants in common are entitled to partition, and there is no provision that the quantity of the estate shall be defined in the order appointing commissioners, in the report of the commissioners, or in the decree of confirmation.
It is true that the statute says that the report and the decree confirming it “shall be binding among the claimants, their heirs and assigns,” but this language was inserted to meet the common-law doctrine that a decree in partition did no more than sever the possession, and is fully satisfied by giving it effect as a conclusive determination of the equality of the division, and of such title as the parties put in issue.
If it means more than this, it will conclude as to titles and estate not litigated, and when it -is not necessary to do so to sustain the judgment.
This seems to be the construction adopted by our Court, which says, in Graves v. Barrett, 126 N. C., 269 : “But in a petition for partition, title is not in issue, unless the defendants *182put it in issue by pleading 'sole seizin.’ Tbat was not done in this case. Tbe Code, see. 1892, does not require averment of‘ title as in ejectment, but simply an allegation of seizin and possession as tenants in common, and tbe seizin and possession of one are tbat of all”; and in Lindsay v. Beaman, 128 N. C., 192: “In the case of deeds, title passes from owner to purchaser, and to constitute color of title must be registered (Austin v. Staten, 126 N. C., 783), while in partition proceedings between tenants in common no title passes, only tbe unity of possession is dissolved and title vests in severalty, notice of which is fully given by tbe record itself, tbe common source of title resting undisturbed”; and in Buchanan v. Harrington, 152 N. C., 334, citing Cyc., 310: “We apprehend, however, tbat whenever plaintiff alleges himself to be the owner in fee, or of any specified estate, or avers any other ultimate fact under which he is entitled to relief, it becomes the duty of the defendant either to concede or take issue with the allegation or averment, and that the judgment in the action will be as conclusive as it would be upon a like issue in any other action. The truth is, that a judgment in partition is as conclusive as any other. It does not create or manufacture a title, nor divest the title of any one not actually or constructively a party to the suit, but it operates by way of estoppel; it prevents any of the parties from relitigating any of the issues presented for decision, and the decision of which necessarily entered into the judgment; and it-divests all titles held by any of the parties at the institution of the suit.”
Applying these principles, it appears that it was not alleged in the partition proceeding that the petitioners and the defendants were tenants in common in fee, nor does it appear that there was any adjudication of title. (
The petition alleges that the petitioners .and the defendants “are owners as tenants in common,” without alleging that the ownership is in fee, and there is nothing in the petition to show whether the interests of the parties were acquired by descent or purchase. No answer was filed, and the order appointing commissioners makes no adjudication as to title or as to the tenancy in common, but simply appoints commissioners “to go *183upon the premises mentioned in the petition and lay off the land according to the prayer thereof and' make report,” and the confirmation of the report, which was an allotment of shares, was by an entry on the docket, “Report confirmed.” The word “owner,” used in the petition, may be broad enough to include an estate in fee simple, but it also includes estates less than a fee (29 Cyc., 1550), and when associated, as it is, with the words, “as tenants in common,” in a petition for partition, and considered in connection with- the histqry of partition, whose primary and chief purpose was and is to sever the unity of possession, and keeping in mind that partition may be had of estates less than a fee, it is reasonable to conclude that the allegation was as strong as the title, and that it was merely sufficient to sustain the proceeding. The conduct of the plaintiff and of his father, under whom he claims, sustains this view, as it appears that neither claimed any interest in the land, nor did either ever exercise any act of ownership over it until a short time before this action was instituted, when an agent of the Richmond Cedar Works suggested to the plaintiff that he held the title to the land, and that his company would pay the expense of the litigation if he would contest the title with the defendant.
The plaintiff testified, among other things: “I am the plaintiff in this case; am 29 years old. My father’s name was John Carey Weston; he lived in Norfolk, and died in 1895; his father was named Carey Weston.” “I never claimed the lands in controversy until one or two years ago, when a man by the name of Johnson came to me about some property in this same Dismal Swamp, situated in Pasquotank County, and told me that the Richmond Cedar Works had been in possession long-enough to give them title, and that I had only a paper title, not actual title; he wanted to buy it. I employed Mr. Gwathmey, the lawyer, to go down and look into it, and he dug up the record as to this property in dispute, and I then entered into a contract with the Richmond Cedar Works, by which they were to pay a part of the expense of the litigation and to receive a part of whatever money might be recovered in this suit. They were to pay a part of the expense and to get one-*184third of whatever might be recovered in this litigation, and I agreed to sell the land to them if I should recover it, at a price to be fixed by the number of cqrds of juniper timber on the land. The Richmond Cedar Works was to pay me for the land, if I could recover it, $1 per cord for all timb.er measuring over 8 inches in diameter, and 50 cents per cord under 8 inches in diameter, measuring at 18 inches from the ground. They were not to take it unless I could give them a good title. 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. My father was 9 years old when my grandfather died.”
If, however, the allegation in the petition is sufficient as to ownership in fee, there has been no adjudication of the title.
No issue as to title was raised by answer, and there is no reference in the order appointing commissioners^, in the report, or in the decree of confirmation to the quantity of estate held by the tenants in common, and when it is remembered that partition could be had of an estate less than a fee, and that while title could be put in issue aiid finally settled, it was not obligatory to do so, and that a judgment in partition which simply severs the unity of possession is valid, it seems to follow that the proceeding relied on as an estoppel cannot have that effect, because the title was not adjudicated, and it was not necessary to do so to sustain the judgment rendered. The only facts essential to the validity of the judgment, and necessarily presumed to exist in order to sustain it, are that there was a unity of possession and an equality of division.
“The estoppel of a judgment cannot be extended beyond the particular facts on which it was based; it determines only such points or questions as are sufficient to sustain the legal conclusion that judgment must be given for one or the other of the parties in the particular form and amount in which it was rendered, not additional matters, unnecessary to the decision of the case, although they come within the scope of the pleadings, unless they are actually litigated and passed upon.” 23 Cyc., 1290.
*185If these positions are sound, and tbe defendant is not bound by- tbe implied warranty, and tbe judgment in tbe partition proceeding only estops as to tbe unity of possession and tbe equality of division, tbe plaintiff bas failed in bis proof of title, as be bas offered no evidence of possession by bimself or by those under wbom be claims, and no evidence of ' title, except tbe partition proceedings upon wbicb be relies as an estoppel, and tbe motion for judgment of nonsuit should have been allowed.
This disposes of tbe appeal, and it is unnecessary to discuss tbe validity of tbe deed of tbe State Board of Education to tbe defendant, or of tbe right of tbe defendant to rely upon this deed as an after-acquired title.
CLARK, 0. J., concurs in this opinion, as well as opinion of BROWN, J.