dissenting: Tbe.primary purpose of proceedings of tbis character is to ascertain and establish an uncertain or disputed line between adjoining proprietors. In several well considered decisions of tbe Court it has been held tbat tbe parties may, by their pleadings, raise tbe issue as to title, and, when tbis is done, tbe statute directs tbat tbe cause be transferred to tbe Superior Court in term, and becomes, in effect, a civil action to try title to land.
Unless tbis issue is made and tbe cause transferred, tbe proceedings remain as they were instituted, before tbe clerk; and be has no jurisdiction to settle questions of title. He can only ascertain and define tbe disputed or doubtful line, and if, in tbe course of proceedings, it appears tbat tbe parties, under tbe guise of a proceeding to settle boundary, are in fact endeavoring, wittingly or unwittingly, to determine title, tbe clerk should dismiss tbe case; or if be does not, and proceeds to determine a dividing line, which in effect settles tbe title, bis decision is of none effect, and tbe litigants may, in a proper action, have tbe true title declared and, as an incident thereto, settle and determine tbe true boundary. Tbis is what our decisions mean when they bold, as they have in many cases, “Tbat title to land cannot be tried under tbe processioning act”; and further: “Tbat processioning proceedings bad between parties and tbe judgment of tbe clerk therein are no bar to an action of ejectment, subsequently instituted to determine tbe title between tbe same parties.” Midgette v. Midgette, 129 N. C., 21; Vandyke v. Farris, 126 N. C., 744.
It is true, as stated in tbe opinion, tbat “where tbe purpose of tbe proceeding is to settle a question of boundary, tbe judgment of tbe clerk should work an estoppel as to where tbe dividing .line between two tracts is”; but when, from a perusal of tbe pleadings and tbe facts in evidence, it clearly appears tbat tbe issue presented is not one of establishing" a divisional line, but is in fact and in truth an issue of title, tbe jurisdiction of tbe clerk is at an end, and bis judgment should not be allowed tbe effect of an estoppel; and so it is here. Tbis plaintiff, in a former suit, mistaking bis remedy, applied to tbe clerk to settle tbe boundary line between him and defendant. There was no issue *664of title raised by tbe pleadings. Tbe cause was not transferred, and tbe clerk proceeded to bear evidence and decide tbe issue, establishing tbe line as claimed by defendant. An examination of tbe former suit and tbe facts in evidence will sbow that establishment of tbe divisional line was not tbe matter in dispute at all, save as an incident of 'the graver question of title.
Plaintiff claimed under a grant to Alfred Williams, 12 December, 1862; defendant, under a grant to J. F. Lyda, in 1871; and tbe location of tbe Lyda grant, as claimed by defendant, will cover not less than two-tbirds of tbe Williams grant, located as claimed by plaintiff. And tbe clerk, to my mind, being entirely without jurisdiction, has proceeded to settle this issue.
True, be calls it a judgment settling a disputed line; but it was not tbe case of a dividing line at all, but a question of lappage, affecting the title to two-tbirds of tbe plaintiff’s property.
Tbe question of estoppel by judgment and tbe decisions thereon, so clearly stated in tbe opinion of tbe Court, are only applicable when tbe court rendering tbe judgment bad jurisdiction of tbe cause and tbe parties.
In this case tbe clerk was without jurisdiction to adjudicate or determine tbe question at issue, and, in my opinion, and under tbe numerous decisions on tbe subject, tbe court below was right in ignoring tbe action of tbe clerk and in trying tbe cause de novo.