Peter KELLY and wife, Ethel Kelly,
v.
John KELLY and wife, Betty G. Kelly (original parties defendant), and Franklin County (additional party defendant).
No. 453.
Supreme Court of North Carolina.
November 24, 1954.*811 John Matthews, Louisburg, for plaintiff-appellant.
Beam & Beam, Louisburg, for defendants John Kelly and wife, appellees.
Hamilton Hobgood, Louisburg, for defendant Franklin County, appellee.
DENNY, Justice.
This appeal presents a number of questions for determination. However, the two which are of primary importance are these: (1) Is the ruling of the court below, in respect to the plea of res judicata, erroneous? (2) If so, did the plaintiff introduce sufficient evidence to take the case to the jury? We think the first question must *812 be answered in the affirmative, and the second in the negative.
The general rule with respect to res judicata is that where a former judgment has been entered on the merits of the controversy and the new action is based upon substantially the same allegations, and substantially the same evidence, the trial court should hold that the judgment in the first action was a bar, or res judicata, and thus end that particular litigation. Hampton v. Rex Spinning Co., 198 N.C. 235, 151 S.E. 266. For example, if, in a tort action, a plaintiff introduces his evidence and the trial court holds such evidence shows that the plaintiff was guilty of contributory negligence as a matter of law, and enters a judgment of nonsuit, the judgment, unless reversed on appeal, would be a bar to a second action involving the same allegations and the same evidence. Batson v. City Laundry Co., 209 N.C. 223, 183 S.E. 413. But, ordinarily, where there is a demurrer to the evidence and the court sustains the demurrer and enters a judgment of involuntary nonsuit, the plaintiff is permitted to bring another action in order that he may "mend his licks," if he can. Batson v. City Laundry Co., 206 N.C. 371, 174 S.E. 90; Swainey v. Great Atlantic & Pacific Tea Co., 204 N.C. 713, 169 S.E. 618; Hampton v. Rex Spinning Co., supra; Tuttle v. Warren, 153 N.C. 459, 69 S.E. 426; Trull v. Seaboard Air Line R. R., 151 N.C. 545, 66 S.E. 586; Smith v. Globe Home Furniture Manufacturing Co., 151 N.C. 260, 65 S.E. 1009; Hood v. Western Union Telegraph Co., 135 N.C. 622, 47 S.E. 607; Nunnally v. Seaboard Air Line R. R., 134 N.C. 755, 48 S.E. 998; Prevatt v. Harrelson, 132 N.C. 250, 43 S.E. 800.
In the case of Tuttle v. Warren, supra [153 N.C. 459, 69 S.E. 427], the action was for the possession of land. The court said, in respect to plaintiff's proof, "He has shown no legal right to claim under Reuben Warren, or to avail himself of his possession of the locus in quo. * * * In the absence of the essential proof, we must sustain the judgment of nonsuit; but this does not prevent the plaintiff from bringing another action (Tussey v. Owen, 147 N.C. 335, 61 S.E. 180) and supplying the present deficiency in the evidence, if he is able to do so."
Ordinarily, if the evidence on which the plea of res judicata is sustained tends to show the facts to be as found by the trial court, its findings will not be reviewed by this Court. Batson v. City Laundry Co., supra, 209 N.C. 223, 183 S.E. 413. But, in the present action it appears from the record that in addition to the evidence offered in the first action, additional documentary evidence was offered in the trial below. This evidence was not only pertinent but necessary if the plaintiff is to show a common source of title. Certain parts of this additional documentary evidence was also introduced for the purpose of attack. The court below, in sustaining the plea of res judicata, pointed out that additional evidence was offered in the present trial but held that since it was documentary and was available to the plaintiff at the other trial, it is "conclusively presumed to have been set up in said former action." We know of no rule of law or decision that holds that merely because pertinent evidence was available at the time of a former trial it is conclusively presumed to have been introduced at such trial. The court, it seems, erroneously applied to the introduction of evidence at the former trial, the well-established principle that when a final judgment has been entered in an action, it is conclusive and operates as a bar to a subsequent action between the same parties as to matters which were adjudicated, or which were within the scope of the issue and might have been litigated in the former suit. Gibbs v. Higgins, 215 N.C. 201, 1 S.E.2d 554; Culbreth v. Britt Corp., 231 N.C. 76, 56 S.E.2d 15.
On the second primary question set out above, we hold that the plaintiff's evidence was not sufficient under our decisions to show that the plaintiff and the defendant John Kelly are claiming title from a common source.
*813 In the case of Meeker v. Wheeler, 236 N.C. 172, 72 S.E.2d 214, this Court held that in attempting to show that the plaintiffs and defendant claimed title from a common source, the introduction of a trustee's deed to plaintiffs without introducing the deed of trust in which the power of sale was given, and under which the trustee purported to act, left a break in plaintiffs' chain of title. In the instant case, neither the interlocutory judgment of foreclosure nor the final decree of confirmation of sale pursuant thereto, was introduced in the trial below. The failure to introduce such documents left a break in the defendants' chain of title. The action should have been nonsuited in the court below for the same reason the nonsuit was entered in the first action rather than dismissing it upon the plea of res judicata. However, since the action was dismissed, we will affirm the judgment to that extent only. But this does not preclude the institution of another action if the plaintiff is so advised. Hampton v. Rex Spinning Co., supra.
In view of the conclusions we have reached, and the probability that another action will be instituted, we deem it advisable to pass upon the plaintiff's exception and assignment of error with respect to making Franklin County a party defendant, as well as his exception to the overruling of his demurrer ore tenus to certain pleadings set up in the original defendants' further answer and defense.
The deed from Franklin County to John Kelly, dated 7th February, 1949, is a deed of bargain and sale and not merely a quitclaim deed as was the case in Turpin v. County of Jackson, 225 N.C. 389, 35 S.E.2d 180, or a direct purchase at a tax foreclosure sale as was the case in City of Wilmington v. Merrick, 234 N.C. 46, 65 S.E.2d 373. Even so, we hold that while Franklin County is not a necessary party to this action it is a proper one for the purpose of defending its title to the defendant John Kelly. But, we do not think the defendants, John Kelly and wife, are entitled to have their purported crossaction litigated in this ejectment suit. The adjudication of rights that may arise as between John Kelly and wife and Franklin County, in the event the latter's deed to John Kelly is declared invalid, is not essential to a complete determination of the matters in controversy between the plaintiff and the defendants, John Kelly and wife. Moore v. Massengill, 227 N.C. 244, 41 S.E.2d 655, 170 A.L.R. 147; Schnepp v. Richardson, 222 N.C. 228, 22 S.E.2d 555.
We now consider the plaintiff's demurrer to the further answer and defense of John Kelly and wife, in which they allege the plaintiff's deed is invalid by reason of the mental and physical condition of Sam Kelly, Jr., at the time the deed is purported to have been executed, and that it was obtained by the plaintiff through undue and improper influence and duress upon the said Sam Kelly, Jr. In our opinion, these defendants are without legal authority to assert such an attack. This right is vested exclusively in the heirs of Sam Kelly, Jr. (Sam Kelly, Jr., having died since the execution of said deed and, according to plaintiff's brief, these defendants are not his heirs), unless the personal representative of Sam Kelly, Jr., deceased, is required to sell real estate in order to create assets to pay the obligations of his estate. In this event, his personal representative would have the right to bring such an action. Holt v. Holt, 232 N.C. 497, 61 S.E.2d 448; Speed v. Perry, 167 N.C. 122, 83 S.E. 176; 21 Am.Jur., Executors and Administrators, sections 908, 909, 1007, and 1013; 26 C.J.S., Descent and Distribution, § 85. Hence, the ruling of the court below on plaintiff's demurrer ore tenus is reversed. G.S. § 1-141; Erickson v. Starling, 235 N.C. 643, 71 S.E.2d 384.
We will not consider or express an opinion at this time on plaintiff's contention that proper service by publication was not obtained on Sam Kelly, Jr., in the taxforeclosure proceeding pursuant to which the defendant John Kelly claims to have *814 obtained title to the lands in question. Neither do we express an opinion as to the sufficiency of the description of the property in the tax-foreclosure proceeding, but see Board of Com'rs. for Beaufort County v. Rowland, 220 N.C. 24, 16 S.E.2d 401; Johnston County v. Stewart, 217 N.C. 334, 7 S.E.2d 708; and Bissette v. Strickland, 191 N.C. 260, 131 S.E. 655.
The judgment of the court below is
Modified and affirmed.