Sherman WILSON and wife, Earline Wilson,
v.
T. C. HOYLE, Jr., Trustee, Cameron-Brown Company, A. N. McCoy and wife, Ernestine McCoy, American Federal Savings & Loan Association, and J. Kenneth Lee, Trustee.
No. 665.
Supreme Court of North Carolina.
December 16, 1964.*208 Hines & Dettor, Greensboro, for plaintiff appellants.
Bethea, Robinson & Moore, Reidsville. for defendant appellees.
BOBBITT, Justice.
It was appropriate for Judge Gambill, in the exercise of his discretion, to *209 determine the plea of res judicata, a plea in bar, prior to trial on the merits of plaintiffs' alleged cause of action. Jones v. Mathis, 254 N.C. 421, 425, 119 S.E.2d 200, and cases cited.
In our view, the record does not support plaintiffs' contention that Judge Gambill entered judgment on the pleadings. The stipulations referred to in the judgment establish the identity of parties and of subject matter in the two actions. The judgment refers to and quotes from Judge Crissman's judgment in the prior action. It contains a finding of fact that Judge Crissman's said judgment resolved the issue of title raised in the prior action by adjudicating defendants McCoy to be the owners in fee simple of the subject lands. Plaintiffs did not except to any recital, stipulation or finding of fact set forth in Judge Gambill's judgment. It is manifest the hearing before Judge Gambill was on the pleadings herein, the judgment roll in the prior action and the stipulations as to identity of parties and subject matter.
Judge Crissman's judgment of November 26, 1962, in the record before us, discloses that the cause of action alleged by plaintiffs in the prior action was an attack on the deed of trust recorded in Book 564, page 271, said Registry, executed by W. C. Falkener and wife, Margaret E. Falkener, and on the regularity of the foreclosure thereof by J. Kenneth Lee, Trustee; and that defendants McCoy asserted title and right to possession under deed executed and delivered by J. Kenneth Lee, Trustee, to A. N. McCoy pursuant to said foreclosure. Judge Crissman adjudged the validity of said deed of trust to J. Kenneth Lee, Trustee, and the validity of the foreclosure thereof, "and that the deed from J. Kenneth Lee, Trustee, to A. N. McCoy conveyed complete and legal title to said property to A. N. McCoy and that the plaintiffs Sherman Wilson and wife, Georgia Earline Wilson, own no interest in said property." (Note: Subsequently, the subject lands were conveyed by deed dated November 29, 1961, recorded in Book 576, page 84, said Registry, executed and delivered by A. N. McCoy to A. N. McCoy and wife, Ernestine B. McCoy.) It was also ordered that the Sheriff of Rockingham County immediately eject plaintiffs from the subject lands and put defendants McCoy in possession thereof. It was also ordered that "the matter of determining what damages, if any, the defendants, A. N. McCoy and wife, Ernestine McCoy are entitled to receive from the plaintiffs is hereby continued to the next term of civil court of Rockingham County." (Note: According to their answer, defendants McCoy, at March 1963 Regular Civil Session in said prior action, were awarded judgment against plaintiffs for damages in the amount of $590.00 for the period plaintiffs were in wrongful possession of the subject lands.)
Plaintiffs did not appeal from the adverse judgment(s) in said prior action.
Plaintiffs' brief contains this statement: "Examination of the first action, judgment therein appearing on R. p. 12, would have shown that such judgment was based solely on alleged invalidities in foreclosure proceedings and that the theory of forgery of the Deed of Trust to be foreclosed was not raised."
Plaintiffs contend their present action is not barred because they are attacking ownership of the subject lands by defendants McCoy on different grounds from those they asserted in said prior action. The contention is without merit. While plaintiffs' allegations herein concerning an instrument alleged to be a forgery are vague, the instrument is alleged to be a deed of trust bearing date of August 10, 1958, purportedly executed by plaintiffs. Grounds, if any, for attack on the title of defendants McCoy on account of any matters relating to such a deed of trust existed and were available to plaintiffs when the prior action was instituted and adjudicated.
A final judgment, which adjudicates upon the merits the issues raised by the pleadings, *210 "estops the parties and their privies as to all issuable matters contained in the pleadings, including all material and relevant matters within the scope of the pleadings, which the parties, in the exercise of reasonable diligence, could and should have brought forward." Bruton v. Carolina Power & Light Co., 217 N.C. 1, 7, 6 S.E.2d 822, 826, and cases cited; King v. Neese, 233 N.C. 132, 136, 63 S.E.2d 123, and cases cited; Hayes v. Ricard, 251 N.C. 485, 494, 112 S.E.2d 123; Bowen v. Murphrey, 256 N.C. 681, 683, 124 S.E.2d 882.
In the prior action, the ultimate issue was whether plaintiffs or defendants McCoy were owners in fee simple of the subject lands. A final judgment adverse to plaintiffs was entered. Such judgment is res judicata and constitutes a bar to the present action.
Affirmed.