dissenting: At May Term, 1815, of tbe county court of Camden County, plaintiff’s assignor and others filed their petition for partition of a large body of land called tbe New Lebanon estate, containing many thousand acres, and alleged therein that they were “tbe owners thereof as tenants in common,” and prayed for a division of said lands according to tbe provisions of tbe statute. In tbe proceedings they are also called “proprietors of tbe New Lebanon estate.” Partition was decreed, and Lot No. 1 was allotted to Enoch Sawyer, Lot No. 4 to Sawyer and Proctor, and Lot No. 12 to Mills and Josiab Riddick. Unless tbe decision of this Court upon tbe effect of tbe judgment in tbe partition suit is correct, tbe plaintiff owns Lots Nos. 1 and 4, and, as appears in tbe opinion, be is deprived of both by tbe judgment of this Court, wbicb I think is erroneous. Tbe Court, and I say so most respectfully, bas overlooked tbe provisions of our statute, wbicb, if they bad been read in connection with the authorities relied on, and some from other States too, where there is no such statute, would have so explained them as to have led tbe Court to reverse its conclusion. Coparceners were tbe only tenants who could compel a partition at common law, and tbe reason given for this exceptional rule, and also for tbe warranty implied from tbe partition, was that parceners bad tbe estate east upon *186them by law, viz., by descent, and as the act of the law does injury to no 'one, actus legis ñemini facit injuriam, they were allowed to sever the tenancy and to have an implied warranty, as between themselves, for one parcener could not otherwise force a partition by deed with express warranty, and both partition and warranty would, in that case, depend upon the will of his coparceners. The partition among parceners was effected by writ commanding it to be made, and took effect from the judgment of the court — after the interlocutory order quod, par-titione fiat, the issue of the breve de partitione fadenda, and the sheriff’s return — which judgment was that “the partition so made remain firm and stable forever,” and (unlike the decree in chancery in such cases) of itself passed the title to the allotments in severalty. Rawls on Covenants for Title (5 Ed.), sec. 277, note 2. But the right of partition was not extended to joint tenants and tenants in common until by 31 Henry VIII, ch. 1, and 32 Henry VIII, ch. 32; but they did not by these statutes acquire the right of reentry for condition broken.
With this preliminary statement, we may now consider as to the warranty and condition of reentry implied from partition. The latter being by writ, of course the warranty was implied from the partition itself, and not from any particular words used. It is familiar that the right to partition existed at common law solely between coparceners, and there was this difference between the warranty and the condition: when a parcener reentered for condition broken, she defeated the partition in the whole; but when she vouched by force of the warranty, the partition was not defeated in the whole, but she recovered recompense for the part that was lost. But to joint tenants and tenants in common there was by the common law no right to partition by writ; between them it must have been voluntary merely. And hence was passed the well known statute of 31 Henry VIII, ch. 1, which gave to all joint tenants and tenants in common the right to make partition between them by writ, “in like manner and form as coparceners by the common laws of this realm have been and are compellable to do,” with the proviso, “that every of the said joint tenants or tenants in common and their heirs, after such partition made, shall and may *187have aid of tbe other or of tbe beirs, to the intent to deraign the warranty paramount and to recover for the rate, as is used between coparceners after partition made by the order of the common law.” It will be perceived that this statute gave the right to the warranty only, and as to joint tenants and tenants in common the condition neither existed nor exists by common law or by statute. The common law, therefore, in cases of partition by writ, gave to parceners a warranty and a condition, and the statute gave to joint tenants and tenants in' common warranty alone. But the reason why warranty was implied in a partition between coparceners is not perhaps very clearly stated in the books, and in view of a few decisions the subject would seem to bear some explanation. Rawle on Covenants for Title (5 Ed.), sec. 277.
As between parceners, in case of any eviction by suit upon a paramount title after the partition, the remedy was at common law by vouching the coparcener to assist in deraigning the warranty paramount annexed tp the purchase of the ancestor, and in case of failure to have recompense pro fata for the loss, and in case of eviction by entry without suit, by reentry into the portion of the other coparceners under an implied condition annexed to the partition so to do. There is this difference between the warranty and the condition which the law thus creates upon the partition: When a coparcener takes benefit of the condition, she defeats the partition in the whole, but when she vouches by force of the warranty in law for part, the partition shall not be defeated in the whole, but she shall recover recompense for that part which was lost, to the end that the loss may be equal. For both claim by descent, which is an act of law, and by the law each of them ought to have an equal part of the inheritance of their ancestor; therefore, she shall recover in value but the moiety of what she lost, so that the loss shall be equal, she bearing her portion of it with the sister vouched. Co. Lit., 174a; Allnatt, 156; 4 Rep., 121; Sawyers v. Cator, 8 Humphreys (Tenn.), 256.
In Bustard’s case, 4 Rep., 121, it was adjudged: “That in every exchange, lawfully made, this word excambium implies in itself tacite, a condition and a warranty; the one to give *188reentry, the other voucher and recompense, and all in respect of reciprocal consideration, the one land being given for the other; but it is a special warranty, for upon the voucher by force of it he shall not recover other land in value, but that only which was given in exchange, for inasmuch as the mutual consideration is the cause of the warranty, it shall, therefore, extend only -to land reciprocally given, and not to other land; and the same is law in the case of partition.”
Mr. Rawle, at p. 488, thus states the law where, instead of pursuing their remedy, in the case of parceners, by writ, and in the case of joint tenants and tenants in common, according to the statutes, they partition voluntarily by deed:
If the parceners, instead of making partition by writ, as by law they were compellable to do, chose voluntarily to make partition by deed, as of course joint tenants and tenants in common could always do, the estate in coparcenary was, of course, at an end; and as each of them had thus, as in the case of alienation, “altogether dismissed herself to have any part of the tenements as ’ parcener,” the warranty was gone. Then when the statute of Henry VIII gave to joint tenants and tenants in common (who before could only partition by deed) the right to have partition by writ “in like manner and form as coparceners,” to make the analogy perfect, it provided that after partition each of them and their heirs (but not assigns) should have aid of the other to deraign the warranty paramount and to recover for the rate “as is used between copar-ceners after partition made by the order of the common law”; and, still to keep up the analogy, it was held, after this statute had been in force for more than a century, that if joint tenants, who thus equally with coparceners were compellable to make partition, chose voluntarily to make partition by deed, the warranty was gone; their right to deraign the warranty paramount and to recover for the rate was their right by statute as an incident to the remedy it afforded'; they had not pursued that remedy, and they could not, therefore, have that right. Nothing could be more logically consistent than the whole of this system. And Coke, commenting upon Littleton’s statement of the law, puts this case: “Hereupon it followeth, that if one *189parcener maketh a feoffment in fee, and after ber feoffee is impleaded and vouched tbe. feoffor, sbe may bave aid of ber coparcener to deraign a warranty paramount, but never to recover pro rata against ber by force of tbe warranty in law upon tbe partition; for Littleton bere saitb that by her alienation sbe bath dismissed herself to bave any part of tbe land as parcener, and without question as parcener sbe must recover pro rata, upon tbe warranty in law, against tbe other parcener.”
It will be seen from this recital of tbe law, as taken from Littleton, Coke, Cruise, and tbe old reports, as well as from tbe most modern cases and recent authors whose works are of standard authority, exactly what tbe law is upon this important subject; and I commend tbe case of Sawyers v. Cator, in which Chief Justice Turley delivered a learned opinion, to a careful perusal, as containing a most lucid historical statement of the law, and further because be deals with our early law, before tbe separation of tbe two States, which, as we know, prevails in Tennessee. Tbe clear net result is that, as incident to a judgment in partition, there is an implied warranty of title. If partition was not compulsory now as to all tenants, but could be bad only by voluntary deed, any tenant, by withholding his consent, could require an express warranty, and as his case should not be worse by tbe laws of compulsion, for this reason be should, in tbe latter ease, bave an implied warranty; and so is the law. I bave not cited Carter v. White, 134 N. C., 466, or any other of our decisions, as yet, because I believe that tbe law can be shown to be with tbe plaintiff without them.
It will be noted that in tbe passage quoted above from Rawle on Covenants, tbe statute of Henry VIII provided that, after partition, each of tbe tenants and their heirs (but not assigns) should have benefit of the implied warranty; but while, at tbe separation of tbe colonies from England, we adopted these statutes as part of our jurisprudence, the language was amended by Acts 1187, ch. 274, sec. 1; Acts 1789, ch. 309, and Revised Statutes, ch. 85, sec. 1, so as to provide that tbe “return and appropriations” of tbe commissioners appointed to make tbe partition, “when certified and enrolled, shall be binding and valid in, among, and between tbe claimants, their heirs and *190assigns forever (italics mine) ; and this is our law to this day. Revised Code, ch. 82, sec. 1; Acts 1868-9, ch. 122, sec. 6; Code, sec. 1897; Revisal (1905), sec. 2495. And herein is to be found the provision of our law applicable when this partition was made, and which the Court has overlooked. I do not doubt some other courts have-held that judgment in partition only ascertains the several shares, being a possessory action, and leaving the title as it found it; but in Freeman on Cotenancy and Partition, sec. 532, it is said: “The preponderance of the authorities is probably in favor of the theory that as each co-tenant who has been evicted after a compulsory partition may call upon his cotenants to contribute their proportions of his loss, each of them is, by his obligation of warranty, estopped from asserting any independent adverse title to the purparties assigned to the others.” And again: “In the conveyance of a fee-simple estate in lands, no warranty is implied, because there is no tenure. In partition of land, a warranty is implied, because of the privity of estate." Doe v. Prettyman, 1 Hous. (Del.), 334; Whittemore v. Shaw, 8 N. H., 397; Venable v. Beauchamp, 3 Dana, 325; Walker v. Hall, 15 Ohio St., 362. “The judgment of partition establishes the title to the land which is the subject of the partition, and, in an action of ejectment upon an adverse possession, or an adverse title existing at the date of the partition, it is final and conclusive at law upon all parties to the record, and on all persons holding under them afterwards.” Clapp v. Bromagham, 9 Cowen, 569. “One of the issues which such a judgment ordinarily determines is, that the parties were in possession of the property, holding it as cotenants. Hence, a party to a partition suit is estopped from showing that at the time of the partition he was holding any part of the premises in severalty adversely to his cotenants, or that the petitioner had no interest in the property.” Reese v. Holmes, 5 Rich. Eq., 540; Muse v. Edgerton, Dud. Eq., 179; Burghardt v. Van Denson, 4 Allen, 376. Freeman on C. and P., secs. 530 and 531, is authority for these propositions. He also says at section 530: “But if a judgment in partition is not conclusive upon the title of the parties, this is only because the title was not, according to the law of the State where the *191partition was made, within the issues made or tendered in the action. The rule that a judgment is conclusive upon all the issues determined by it is not less applicable to judgments in partition than to judgments in any other form of action,” and he puts our State in that class, citing Mills v. Witherington, 19 N. C., 433, as the leading case with us; and it does so decide — fairly and squarely — that the judgment in partition is conclusive of the title, and that the parties are by it estopped, as to each other, to deny the title; and not only the parties, but “their heirs and assigns.” The opinion in Mills v. Wither-ington was written by Judge Daniel, who was profoundly learned in the common law; Chief Justice Ruffin and Judge Gaston concurring with him. It is a settled precedent, as we will presently see, involving the title to real property in our State, and must be to us the authoritative construction of the common law as enlarged or broadened in its scope by our statute. It approves Clapp v. Bromagham, supra. In the course of the opinion, Judge Daniel says: “The Legislature, by the act of 1789 (Revisal, ch. 309), gave to tenants in common of real estate the petition for partition, in the place of the ancient writ of partition. The final judgment at common law in a writ of partition runs thus, ideo consideratum est quod partitio prcedicta firma et stahilis in perpetuum ieneatur. Thomas’s Coke, 700. And it was conclusive on the parties and all claiming under them. (Ibidem, note 55.) In Clapp v. Bromagham, 9 Cowen’s Rep., 569, the Court say that the judgment in partition, it is true, does not change the possession, but it establishes the title, and, in an ejectment, must be conclusive. The judgment of the court, adjudging a share to belong to one of the parties, and allotting it to him to hold in severalty, must be sufficient to authorize him to recover it as to all the parties to the record; the judgment is, as to them, an estoppel. The act of 1789 gives the same force to a final judgment in a petition for partition of real estate. It declares that the division, when made, shall be good and effectual in law .to bind the parties, their heirs and assigns.”
Commenting on that case, Judge Battle, who annotated it, says that the doctrine of estoppel, as laid down in it, is clearly *192established. He cites Armfield v. Moore, ibid., 168, and then adds that the judgment is binding and conclusive, not only on a party to the proceedings, but on a purchaser from him; and he also cites Coble v. Clapp, 54 N. C., 173, which is to the same effect as the Mills case, and holds that the judgment, as to the title, “is binding on all the parties to it and their privies,” the plaintiff in the suit being a privy in estate by his purchase from one of the tenants. Mills case is affirmed in Latta v. Morrison, 23 N. C., 149; Long v. Orrell, 35 N. C., 123; Stewart v. Mizell, 43 N. C., 242; Turpin v. Kelly, 85 N. C., 399; Grantham v. Kennedy, 91 N. C., 148.
Chief Justice Ruffin, in Long v. Orrell, supra, says that the estoppel arising out of a partition is- conclusive as to the title. In that ease one of the parties had conveyed the share “derived by her under the partition.” In Stewart v. Mizell, supra, the same judge says that the judgment at law is conclusive as to the estate in common in the thing partitioned, and in respect to the share to which each tenant is entitled, and to the parcel allotted to each in severalty. He also says that where the tenants were alleged to be the owners of the land in common, and there is an allotment of shares in severalty, the judgment is conclusive and the partition is in itself a good title, as between the parties to it, in any dispute among them. ¥e have seen by the statute, and the authorities construing it, that it is also binding upon the “heirs and assigns” of the petitioners. To the same purport is Turpin v. Kelly, supra, opinion by Justice Ashe. The case of Grantham v. Kennedy, supra, approves the Mills case, and Justice Merrimon says: “The decree in the partition proceedings mentioned is conclusive upon all parties to it, and it estops the plaintiffs in this action to deny the title of the defendant, Helen Kennedy, to that part of the land allotted to her, if the said proceedings are valid. Mills v. Witherington, 19 N. C., 433; Stewart v. Mizell, supra; Gay v. Stancell, 76 N. C., 369.”
In the leading case of Armfield v. Moore, 44 N. C., 157, Judge Pearson says: “Now, in effect, partition amounts to a mutual transfer of title to different parts; that is, one passes his right to that, to be held in severalty, in consideration of a *193transfer by tbe other to this, to be held in severalty.” And in Dixon v. Warters, 53 N. C., 449, Judge Manly says: “The slave in question had been a part of the estate of the said Benajah, and was decreed, upon the final hearing of the bill, to belong to the plaintiff. The parties are unquestionably estopped by the decree. The rights of property, as declared under it, are conclusive upon them, until it is reversed; res adjudícala est, et interest reipublicco u,t finis sit litium. . . . ~ Where a decree or judgment of court- is rendered, declaring rights of property in tenants in common of things capable of division, and a partition is ordered, made and reported, an inchoate right of property is raised, which the subsequent judgment of confirmation perfects. In such case the title has relation back to the division, and starts from that time.” And this is the way Judge Battle puts it in Branch v. Goddin, 60 N. C., 493: “If the plaintiff’s testator had been a party to the suit for'partition, then he would have been estopped by the record from setting up any title to the slaves.”
Speaking of the effect of an estoppel by record (for there are three, the others being by writing or deed and by matter in pais), Judge Bynum said in Gay v. Stancell, 16 N. C., at p. 374: “The ground of the rule, that in a subsequent action you are not permitted to go behind the judgment deciding the same point between the same parties, is that otherwise there would be no end of litigation. It may sometimes operate apparent hardships, but not more so than the statute of limitations and other rules of repose, the necessity and convenience of which all acknowledge. Duchess of Kingstonis case, 2 Smith L. C., 435 (note).” There are many eases in other jurisdictions to the same effect. The rule, that a judgment is conclusive on all the issues determined by it, applies as well to judgments in partition as to' judgments in any other form or kind of actions: Flagg v. Thurston, 11 Pick., 431; Ihmsen v. Ormsby, 32 Pa. St., 200; Foxcroft v. Barnes, 29 Me., 129; Robb v. Aiken, 2 McCord’s Ch., 125; Herr v. Herr, 5 Pa. St., 428; Burghardt v. Van Deusen, 4 Allen, 375; Whittemore v. Shaw, 8 N. H., 397; Clapp v. Bromagham, 9 Cowen (N. Y.), 569; Forder v. Davis, *19438 Mo., 115; Doe v. Prettyman, 1 Houst. (Del.), 334. Hence, whenever tbe title is in issue, it is settled by tbe judgment.
In most of tbe States tbe action of partition bas ceased to be a mere possessory action, and bas come to involve tbe right as well as tbe possession. After a review of all tbe authorities, tbe better and now generally accepted doctrine is that, as each tenant after a compulsory partition, if evicted, can call on bis cotenants to contribute their proportion to bis loss, each is estopped from asserting any independent adverse title to pur-parties assigned to tbe others. Venable v. Beauchamp, 4 Dana, 321 (28 Am. Dec., 74, and note); Walker v. Hall, 15 Ohio St., 362. These cases are exactly in line with Mills v. Witherington, 19 N. C., 433. In Venable v. Beauchamp, 4 Dana, 321, it was held that, “One parcener, joint tenant or tenant in common, cannot purchase in an adverse claim to tbe land, for bis exclusive benefit; still less can he use it to expel bis cotenant. And because of tbe reciprocal warranty, implied by law, as between tbe parties to a partition, their relation to each other, as to the title, remains tbe same after tbe partition as before; so that tenant of one parcel cannot place himself in an attitude hostile to bis former cotenants and tbe common warrantor. To every partition of land tbe. law annexes an implied warranty. And though this warranty is, in some respects, limited, it extends to tbe whole land, and estops each partitioner from asserting any adverse claim to any parcel of tbe land allotted to another. A and B are tenants in common. B sells bis interest to 0 by executory contract. A and C agree upon a partition, and deeds of partition are accordingly made by A and B (holders of tbe legal title), and then B conveys bis part to C, in compliance with bis previous executory contract; in equity, C shall be considered as standing in B’s place precisely and in all respects, subject to tbe same liability as warrantor to tbe former cotenant, A, against whom be can set up no adverse claim to tbe land. Where one or two cotenants purchase an adverse claim to tbe land, it operates for tbe benefit of both.” See, also, Jones v. Stanton, 11 Mo., 433; Burghardt v. Conrad, 86 Mass., 374; Whittemore v. Shaw, 8 N. H., 393.
*195Lord Chancellor Redesdale said in Whaley v. Dawson, 2 Sch. and Lefroy, at p. 367, that partition at law and in equity are different things. The first operates by the judgment of a court of law, and delivering up possession in pursuance of it, which concludes all the parties to it. Partition in equity proceeds upon conveyances to be executed by the parties; and if the parties be not competent to execute the conveyances, the partition cannot be effectually had. And in Gay v. Parpart, 106 U. S., 679, the same principle was thus stated: The difference between a judgment and writ of partition at common law, and a partition by decree in chancery as it affects the title, is that the former operates by way of delivery of possession and estoppel, while in the latter the transfer of title can be effected only by the execution of conveyances between the parties, which may be decreed by the court and compelled by atta'ehment. These two cases will explain Nicely v. Boyles, 4 Humphreys, 177, opinion by Chief Justice Turley, who gave the judgment also in Sawyers v. Cator, supra. The case of Nicely v. Boyles is also reported in 40 Am. Dec., 638, with a valuable note, which sustains by the great weight of authority the doctrine of Mills v. Witheringion, supra, and places this State with those that hold the'partition to be an estoppel by record, with the same force and conclusive effect as any other estoppel by judgment. “When the same matter is directly in question, and the judgment in the former suit upon the point, it will then be as a plea, a bar, or as evidence,' conclusive upon the parties. 2 Philip Ev., 13. So a judgment is conclusive upon a matter legitimately within the issue, and necessarily involved in the decision. 4 Cow., 559; 8 Wend., 9; C. and H. notes, part 2, note 22.” McCall v. Carpenter, 59 U. S., 302.
There should be no prejudice against an estoppel of this kind, or of any sort. Judge Pearson shows the great necessity for the doctrine in the administration of justice, by saying, in Armfield v. Moore, 44 N. C., at p. 161: “According to my Lord Coke, an estoppel is that which concludes and 'shuts a man’s mouth from speaking the truth.’ With this forbidding introduction, a principle is announced which lies at the foundation of all fair dealing between man and man, and without *196which it would be impossible to administer law as a system. The harsh words, which the very learned commentator upon Littleton uses, in giving a definition of this principle, are to be attributed to the fact that before his day The scholastic learning and subtle disquisition of the Norman lawyers’ (in the language of Blackstone) had tortured this principle so as to make it the means of great injustice; and the object of my Lord Coke was to denounce the abuse, which he says had got to be 'a very cunning and curious learning,’ and was ‘odious’; and thereby restore the principle, and make it subserve its true purpose as a plain, practical, fair, and necessary rule of law. The meaning of which is, that when a fact has been agreed on, or decided in a court of record, neither of the parties shall be allowed to call it in question, and have it tried over again at any time thereafter, so long as the judgment or decree stands unreversed.” It is a rule of law founded upon one of its wisest maxims, Interest reipubliccc ut sit finis litium, which means that it is the interest of the State that there should be an end of strife and litigation. When a party has had a fair opportunity to assert his rights, neither he nor any one claiming in privity under him should be heard to raise the question again for decision. All the law gives the party is his day in court.
Now the case of Carter v. White, 134 N. C., 466, falls naturally under consideration. That case decides two propositions:
1. That the effect of the judgment in the ejectment suit, ascertaining that plaintiffs were the owners of fifty-three fifty-fourths of the land, was to leave the parties in possession as tenants in common, with the interest adjudged by the court upon the verdict; and this is the estoppel referred to by Justice Connor, who wrote the opinion, in the extract therefrom which we find in the opinion of the Court in this case, as follows: “In the view which we take of the effect of the partition proceeding, it is not necessary to decide the effect of this estoppel upon an after-acquired outstanding title, and we forbear to express any opinion thereon.” He was not referring to the estoppel of the judgment in partition, as might be inferred from the Court’s opinion in the case at bar. And here is where I think the Court misapprehends the legal effect of the decision *197in Carter v. White. Nor is the extract taken from the brief of plaintiff’s counsel pertinent or accurate. The counsel had his mind also on the judgment in the ejectment suit, for the effect of that, as an estoppel, is the only question referred to by Justice Connor in that extract. "We have no such question here, and, besides, defendant’s counsel were alluding to what Justice Connor said merely to emphasize the fact that there is no outstanding paramount title in this case, and, therefore, it is unnecessary to argue as to the effect of an estoppel, in-any view, upon such a title; and that is all. The Court omits all reference, as I think, to the vital part of the decision in Carter v. White—pretermits it or overlooks it—and this, it seems to me, has resulted in a misinterpretation and misunderstanding of the case.
2. The second proposition decided in the Carter case was, that the judgment in the partition proceeding raised an implied warranty of title as between those who had formerly been tenants in common, and further, that the said judgment also operated as an estoppel of record, and an implied warranty, by way of rebutter, not only against the parties to the suit, but also against their heirs and assigns, and if not against their assigns, certainly as against their heirs. But the statute, Revisal, sec. 2495, fastens the estoppel upon their assigns, as we have seen. The case of Carter v. White recognizes the implied warranty, though, in some respects, special, as binding and conclusive upon the parties and their heirs as if it had been express. The effect of a warranty of title is to estop or rebut the party who made it, and his heirs, or the one who has succeeded to his title, from denying the title of the party to whom the warranty was given, and the benefit of the warranty passes to the' heirs and assigns of the warrantee, and its burden falls upon the heirs and assigns of the warrantor. The last proposition, that the heirs and assigns of the warrantor are bound by the warranty, even though not named therein, and that the benefit of the warranty passes to the heirs and assigns of the war-rantee, was expressly decided in Wiggins v. Pender, 132 N. C., 628. The warranty runs with the land. The legal effect of this implied warranty, operating as a rebutter, and of the *198“solemn judgment in partition” as an estoppel of record, is clearly) stated by Justice Connor in the Carter case, and the statement supported by the highest authority, such as Shep. Touchstone, 2 to 6, 204-6; Rawle on Coy. for Title, 402; Rich v. Holmes, 5 Rich Eq., 540; Freeman on Cotenancy, sec. 533; Washburn on Real Property, 123; Venable v. Beauchamp, 3 Dana, 321; Forder v. Davis, 38 Mo., 107. In the last cited case the Court said: “In reference to this plaintiff, we think the judgment operates as a bar against him at law, not only in respect of the estate and title which he then had, but in respect of any title which he might thereafter acquire. There is here no covenant of warranty by deed; but there is such a thing as an estoppel in pais, and by matter of record, which, like an estoppel by deed, may have the effect to pass an after-acquired title, by operation of law. The partition establishes the title, severs the unity of possession, and gives to each party an absolute possession of his portion. A partition is something altogether the act of the parties rather than the act of the law. This binding and conclusive judgment is, in its very nature, very much like the old livery of seizin, under a feoffment} which was matter in pais, or like a fine, or a common recovery, which was matter of record, and these ancient assurances were of that solemnity and high character that they not only passed an actual estate, and divested what title the party then had, but operated by way of estoppel to pass all future estate and possibility of right which he might thereafter acquire; and we see no good reason why this solemn judgment in partition, which the statute declares shall be firm and effectual forever, should not he allowed to have the same operation against all-parties to the record.”
The courts, in construing 31 Henry VIII and 32 Henry VIII, which provided that the judgment in partition should be firm and effectual forever, held that it hound and concluded all parties to the record and their privies in blood; and when our statute, and some of the statutes in other States, extended the effect of it to the aásigns of the parties of record, they necessarily became bound in the same manner and to the same extent as the heirs and their privies had been bound under the *199statutes of Henry VIII. Of course, as a general rule, no man is estopped by a deed wbicb be takes from another, because the grantee bolds adversely to tbe grantor, but when his grantor has made a warranty or is himself estopped by a judgment with reference to the land, both the warranty and estoppel run with the land, that is, follow it into the hands of whomsoever may purchase it, and the latter becomes as much charged with the warranty and liable upon it, and as much affected by the estoppel, as his grantor. He assumes the burden of both warranty. and estoppel when he buys, because they are annexed to and inseparable from the land. Wiggins v. Pender, supra; Hallyburton v. Slagle, supra; especially at pages 949 and 950.
Justice Connor did not intend, in McCollum, v. Chisholm, 146 N. C., 24, to change the doctrine so clearly stated in Carter v. White, but was merely distinguishing the two cases when he used the language quoted in the opinion in this case. The McCollum case presented a decidedly different question from that involved in the Carter case. The question there was whether the estoppel of the judgment in the partition, the effect of which was firmly and definitely fixed, would extend to land held by the same parties in common, but not embraced by the pleadings or issues in the partition suit. There could be but one answer to this question; nor was the judgment an estoppel as to the interests of any of the parties but Colonel Simmons,, because the extent or quantity of those interests was not within the issue.
The cases of Harrison v. Ray, 108 N. C., 215, and Harrington v. Rawls, 131 N. C., 39, cited by the Court, have no bearing upon the case. They were voluntary partitions by deed, and no warranty was implied, as each party had the opportunity to demand an express warranty when the division took place, and having failed to do so, the law will not aid him by implying a warranty. He simply waived the warranty by not asking for it. The law aids the vigilant and not those who sleep upon their rights. It is very different when the partition is compulsory and is made in inmitum or by judicial procedure; and so say all the books.
*200The expression, that the partition “does not create or manufacture any title,” was used by Justice Manning in Jones v. Myatt, 153 N. C., 229, and he was there alluding to a partition by deed, for he says: “The partition was effected by deed, and we think it was competent to be so done” (p. 229). The cases he cites for the proposition were of the same kind — partitions by deed. The first quoted expression is used elsewhere, and its meaning fully explained. “The truth is, that a judgment in partition is as conclusive as any other. It does not create nor 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.” 30 Cyc., 310. The clear effect of the estoppel and the warranty is to prevent any party to the partition suit and his heirs and assigns from setting up a new title, whenever acquired, as against another party to the suit, or his heirs or assigns; and it is not material to inquire whether any new title is “created or manufactured” or not. The question does not turn upon that, but rests, for its solution, upon the warranty and the estoppel, and their legal effect or operation, which is well settled. Hallyburton v. Slagle, sufra; Wiggins v. Pender, supra; Armfield v. Moore, supra; Van Rensselaer v. Carney, 11 Howard (U. S.), 297; Hazensick v. Castor, 53 Neb., 495; French v. Spencer, 21 Howard (U. S.), 240; 11 Am. and Eng. Enc. (2 Ed.), p. 403; Ryan v. U. S., 136 U. S., 68; Cuthrell v. Hawkins, 98 N. C., 203; Johnson v. Farlow, 35 N. C., 84; Eddleman v. Carpenter, 52 N. C., 616. The authorities cited by the Court, such as Bigelow on Estoppel (5 Ed.), p. 345; Blight v. Rochester, 7 Wheaton, 534, and the other cases associated with it, refer to deeds taken by a party where there was no estoppel or warranty running with the land, and are clearly distinguishable from the case at bar. Bigelow on Estoppel, p. 29, sec. 4, and Embrey v. Palmer, 107 U. S., 3 to 11, refer to partitions under the statutes of Henry Till, and if intended to limit the effect of the judgment in partition, they are in direct conflict with Garter v. White and the very numerous authorities cited in its support. In the Indiana case cited in the opinion, the mortgage under which one of the tenants claimed covered the entire interest in the land, and the parti*201tion was, of course, made subject to it, the equitable title being-still in the tenants, and sufficient to support the partition. The court was right in bolding that there was no estoppel in such a case. We have held the same thing. And so it is with most, if not all of the cases relied on: they have peculiar facts which call for the application of some other principle than the one we are discussing, though it may have arisen incidentally and received some notice. In Forder v. Davis, supra, it is said: “No party to a partition can be permitted to assert an adverse title for the purpose of ousting another party from the portion allotted to him in the same partition, whether it be acquired before or after the partition is made.” Venable v. Beauchamp, 3 Dana, 324, is to the same effect, and it is there held that, “One tenant in common cannot purchase a superior outstanding title and afterwards use it for the purpose of expelling his cotenant from his share,”.and a long list of cases will be found in the notes to that case, as reported in 28 Am. Dec. (Extra Anno.), at p. 83, which decide the same thing. Jones v. Stanton, 11 Mo., 433, is a case directly in point. Judge Freeman says that this doctrine is not confined to the original parties, but extends to those holding under them. Freeman on C. and Fart., p. 644, citing Clapp v. Bromagham, 9 Cowen (N. Y.), 569; and this is so by the express words of our statute as to assigns, and it is so held in Mills v. Witherington, citing the same case. “The Act of 1789 gives the same force to a final judgment in a petition for partition of real estate (as an estoppel), for it declares that the division, when made, shall be good and effectual in law to bind the parties, their heirs and assigns.” The plaintiff in that case (Mills v. Witherington) claimed as does the defendant here, under a grant from the State, but he was held to be estopped.
"Why should we go into other jurisdictions to find authorities opposed to our own decisions, if they are in conflict, when the law of real property in this State must be fixed by our own decisions? It is the lex loci rei sitae that governs in such cases. Every State decides the question for 'itself, and our people have relied on our cases as settling the law of titles. The doctrine of stare clecisis, therefore, applies most strongly. Hill v. R. R., 143 N. C., 539.
*202Justice Hoke says in Smith v. French, 141 N. C., 1, that when bur decisions involve a rule of property, they should stand for law to us (stare decisis). But the case of Owen v. Needham, 160 N. C., 381, is an authority for my contention. It is true that Alexander Jordan, under whom the plaintiff claimed, was not allotted any land in the partition, but he was a party to the suit and was held to be estopped to deny the title of defendant, who was allotted a share, under Armfield v. Moore, 44 N. C., 161, with a strong intimation by the Court that if Alexander Jordan had been a party to the partition in his own right, claiming as a tenant in common and not in right of his wife, the case of Garter v. Wright, supra, would apply and also estop plaintiff. It must be observed that in Owen v. Needham plaintiff was claiming, by purchase from Alexander Jordan, under a grant from the State, as an outstanding superior title; and yet he was held to be estopped. It can make no difference in this case, or in that, how the party is estopped, whether under Carter v. White or Armfield v. Brown. One estoppel is as good and effective as the other, and just as conclusive and far-reaching.
It is suggested, however, that the title should have been actually litigated in the partition suit, in order to constitute an estoppel upon the parties or' their privies, or to be a res judi-cata. This is contrary to the universal and elementary rule of pleading and procedure, for it is well settled that, “A judgment by confession or consent may constitute' res judicata, for such a judgment is quite as final and conclusive between the parties and their privies as any other judgment, and a judgment by default is just as conclusive as to the rights of the parties before the court as a judgment on issue joined, and consequently the doctrine of res judicata applies to such a judgment with the same validity and force as to a judgment rendered upon a trial of issues.” It is, therefore, not necessary, says a great law writer on this subject, that the judgment should have been awarded upon the decision of an issue, for where it is given for want of a plea, which is judgment by nil dicit, or where it is one by non sum% informatus, or by confession, or by default, the conclusiveness of it is the same as if the fact had been *203actually contested by plea or traverse. Stephen on Pleading (9 Am. Ed. by Heard), pp. 109 and 195. This be calls estoppel by record. There was no answer in Mills v. Witherington, supra, and consequently no actual litigation of the title and no specific reference to it in the pleadings.' And there is another principle equally as well established in pleading, that whatever is necessarily implied is traversable as much as’if it were expressed, and this was' said in regard to the question of sole seizin. Stephen on PL, marg. p. 196. In this case the parties to the former suit alleged that they were “owners as tenants in common.” It was not necessary to allege that they were “owners in fee,” as the law implied such an estate, nothing to the contrary appearing. It will be found that the authorities hold that the usual meaning expressed by the word “owner,” without any qualification, is the person who has the absolute title to the property as distinguished from one having only a limited interest, though the latter may be considered the owner if the context shows that the word was so used. Standing alone, it means, in law, and especially in pleading, the one who is the real owner thereof against the world at large — the one whose right and' title thereto are paramount. This is the natural and obvious meaning, without resorting to subtle and forced constructions for the purpose of either limiting its import or extending its operation. The Court in Directors v. Abila, 106 Cal., 355-363, said that “where a limited signification was not indicated, the word ‘owner,’ in its general sense, means one who has full proprietorship in -and dominion over property. In Bouvier’s Law Dictionary, it is said that: ‘The word “owner,” when used alone, imports an absolute owner.’ In Johnson v. Crookshanks, 21 Or., 339, which was an action of ejectment, the point was as to the meaning and sufficiency of an averment in the complaint that plaintiff was ‘the owner’ of the demanded premises. The Court held it sufficient, and said: ‘This is undoubtedly an allegation of title in plaintiffr The word “owner” has a definite meaning, and is one who has dominion over a thing which he may use as he pleases, except as restrained by law or 'by agreement. (Anderson’s Law Dictionary, title “Owner.”) The precise meaning, perhaps, depends upon *204the nature of the subject-matter, and the connection in which it is used; but when applied to real estate, without any qualifying words, in common as well as legal parlance, it prima facie means an owner in fee/ (Authorities cited).” So in Atwater v. Spalding, 86 Minn., 101, the Court held that to require the particular estate to be alleged in regard to the land would be altogether too narrow and technical for pleading, the word “owner” having a comprehensive meaning. It then says: “Owner, according to Black’s Dictionary, is the person 'in whom is vested the ownership, dominion, or title of property.’ Webster'defines an /owner’ as one who owns; a rightful proprietor; one who has the legal or rightful title, whether he is the possessor or not.” It includes the highest as well as the lowest or most precarious kind of title, and is referable to the former, unless some inferior one is designated. McLain v. Maricle, 60 Neb., 353; Turner v. Cross, 83 Tex., 218; Hardin v. R. R., 113 Ga., 357; Smith v. Ferris, 6 Hun. (N. Y.), 553; McArthur v. Clark, 91 Am. St. Rep., 333; Wright v. Bennett, 4 Scammon, 258; R. R. v. Matthews, 16 Minn., 341; Merritt v. Kewanee, 175 Ill., 537; Bowen v. John, 201 Ill., 292; Garver v. Insurance Co., 69 Iowa, 202; Gravlee v. Williams, 112 Ala., 539; Ruggles v. Nantucket, 11 Cush., 433. The Court said in Frank v. Arnold, 73 Iowa, 370, that “there is no distinction between 'ownership’ and 'title,’ as applied to real estate, but the 'owner’ is the one who has the title”; and in Bowen v. John, supra, that “the term 'owner,’ when applied to real estate, means one holding an estate in fee simple,” citing Insurance Co. v. Manufacturing Co., 1 Gilm., 236. See 26 Am. and Eng. Enc. (1 Ed.), p. 567, and note.
But even if the word “owners” had not been used in the petition for partition, and the allegation had simply been that they were tenants in common, it would just as well have involved the title, for that is exactly what Mills v. Witherington, 19 N. C., 433, decides. I have examined the record of that case, and found that the petition alleged merely that the parties were tenants in common, without any .suggestion of ownership or title of any kind, otherwise than was implied by law from the allegation as made. Judge Gaston so states the case. A grant for *205that part of the land which had been assigned to the defendant "Witherington in severalty was obtained, and plaintiff’s lessor claimed under it. The Court held, as we have already shown, that “while judgment in partition does not change the possession, it established the title, and, in ejectment, must be conclusive on the parties and all claiming under them.” This, it is said, was so at common law. And the Court adds: “The judgment is, as to them, therefore, an estoppel, and the act of 1789 gives the same force to a final judgment in a petition for partition of real estate. It declares that 'it shall be good and effectual in law to bind the parties, their heirs and assigns.’ ” It has been settled in the law too long for any question to be now raised, that estoppels by record or judgment are binding and conclusive,, not merely on the original parties, but that privies in estate, as the feoffee, lessee, and so forth; privies in law, as the lords by escheat; tenant by the curtesy; tenant in dower, the incumbent of a benefice, and others that come in by act in law, in the post, shall be bound by and take advantage of estoppels. Co. Lit., 352a; Outran v. Morewood, 3 East, marg. p. 353.
There is another view of this case. In the partition, it was adjudged that the parties were'the owners of the land as tenants in common. This much is conceded, and it can make no difference’whether they were tenants in common in fee, for life, or for years; the estate, whatever it was, is still outstanding, as there is no evidence that it is terminated. If they were' the owners of any estate at that time (1815), the State was not the owner, but it had parted with its title, fox no person can be said to own land unless he has, in some way, by grant or otherwise, acquired the State’s title. It is impossible for it to be so. The title being out of the State, it follows that the State could not, by the act relied on, pass title to the Board of Education, without office found, or by any proceeding which deprived the owner of his land without a hearing, or without due process of law, unless we are disposed to overrule Parish v. Cedar Co., 133 N. C., 478, and Lumber Co. v. Lumber Co., 135 N. C., 743, which distinctly held that a similar act was unconstitutional and void, and that the Legislature could not, by such a statute, *206divest tbe property of tbe citizen. Tbe cases were well considered, decided by a unanimous Court, and there is absolutely no reason why they should not stand as the law. To reverse them would unsettle innumerable titles in the State, not only of swamp, but of other lands.
The result is that, (1) Defendant is rebutted by the warranty to claim the land under his deed from the Board of Education, if otherwise it would convey a paramount title. (2) That he is estopped by the judgment to assert any such claim. (3) That as it has been adjudged in the partition proceeding that the parties thereto were the owners, as tenants in common, of the land in 1815, the State could not transfer that ownership to the Board of Education without giving the parties notice and an opportunity to be heard, even if the taxes'on the land had not been paid; and the act of the Legislature purporting to do so is, therefore, inoperative, it being void. (4) That defendant, as assignee of Lot No. 12, stands in no better position than the original owner, as the statute operates not only upon the parties, but also upon their “heirs and assigns.”
I conclude that to enter a nonsuit would be erroneous, and that there is no error in the defendant’s appeal. A new trial should be granted in the plaintiff’s appeal, as the judge should have charged the jury that the testimonial clause in the deed, reciting that the seal had been affixed to it, was not merely evidence of the fact, but raised a presumption that the seal was actually affixed. Heath v. Cotton Mills, 115 N. C., 202.
IIoKE, J., concurs in dissenting opinion.