#### AIKEN v. LYON.

(November 13, 1900.)

1. Evidence — Competency—Lost Record — Supreme Court Record — Transcript.

Where a Superior Court record is lost, a certified copy of the transcript of the same in the Supreme Court is 'sufficient evidence of the record.

2'. Estoppel — Judgment notwithstanding the verdict — Record —Res Judicata.

Although judgment is asked notwithstanding the verdict, if the judgment is rendered upon the issues, it constitutes an estoppel.

3. Estoppel — Judgment—Record in Supreme Court — Evidence.

A certified copy of the record in the Supreme Court constitutes an estoppel as between the same parties when the subject matter in litigation is the same.

4. Leeds — Certificate■—Sufficiency—Justice of the Peace.

The certificate of the justice of the peace in this case held sufficient.

5. Ejectment — Demand and Ouster — Answer.

To deny plaintiff’s title to land and plead sole seisen, admits a demand and ouster.

6. Verdict — Trial—Judge—Jury—Findings of Fact.

That the judge wrote the findings of the jury, if they agreed to and returned them as their verdict, does not vitiate the verdict though it is irregular.

Civil ActioN by A. E. Aikin, J. P. Cask and wife, John Ilays and wife, B. J. Golev and wife, B. E. Aiken and J. E. *172Sanderford v. T. B. Lyon, beard by Judge Frederick Moore and a jury, at Spring Term, 1900, of GraNVILLE Superior Court. Tbe certificate of tbe Justice of tbe Peace is bere set out in full.

I, E. E. Lyon, Justice of tbe Peace for Granville County, State of North Carolina, do hereby certify that W. D. Vaughan and S. E. Vaughan bis wife, and B. E. Tingen and M. P. Tingen bis wife, personally appeared before me and acknowledged tbe within deed and for tbe purpose therein expressed, and tbe said S. E. Vaughan and M. J. Tingen being by me privately examined, separate and apart from their said husbands, as touching their voluntary execution of tbe same, doth state that they signed tbe same freely and voluntarily and without fear or compulsion of their said husbands, or any other persons, and doth still assent thereto.

This, March 25, 1898. E. E. LyoN,

Justice of the Peace.

From judgment for plaintiffs, the defendant appealed.

J ohm, TV. Hays, Boone, Bryant & Biggs and Royster & Hob-good, for plaintiffs.

A. W. Graham, J. W. Graham, and Winston & Fuller, for defendant.

Eurci-ies, J.

This is an action for possession of land, in which plaintiffs allege that they are tenants in common with defendant. The defendant denies taht plaintiffs are owners of any interest in said land, and pleads sole seisin. The plaintiffs are the heirs at law and assignees of the heirs at law of W. E. and Lydia J. Aiken, and claim that they are the owners of 150-218 of the land in controversy. They allege that the land was bought for $218, and that Lydia J. Aiken paid $150 of the purchase-money, but through ignorance or *173inadvertence tbe deed was made to ber husband, W. E. Aiken, and that tbe said Lydia J. was tbe equitable owner of 150-218 of said land; that tbe said W. E. in 1850 made and executed a mortgage to the defendant, in which be attempted to convey tbe whole of said land in fee simple. This mortgage was afterwards foreclosed, and tbe ‘defendant became tbe purchaser at tbe foreclosure sale. Tbe mortgagor and wife, Lydia, being in possession of tbe mortgaged land, tbe mortgagee and purchaser, Lyon, brought an action for possession against tbe said W. E. Aiken and wife, Lydia, in the Superior Court of Granville County, in which action be alleged that be was tbe owner of tbe land in fee simple. To this complaint tbe feme defendant, Lydia, answered, and said that she was tbe equitable owner of said land; that tbe same was bought with money arising upon a sale for partition of land she inherited from ber father, and that fact was known to plaintiff when be took tbe mortgage; that tbe deed therefor was made to ber husband, through inadvertence, mistake, or ignorance, instead of being made to ber; that she did not join in tbe mortgage of ber husband to tbe plaintiff, Lyon, and was not a party to tbe action to foreclose tbe same — and asked that tbe plaintiff, Lyon, be declared a trustee of said land for ber benefit. Upon this state of tbe pleadings, the case came on to be tried at Spring Term, 1876, of tbe Superior Court of Granville County, upon tbe following issues submitted to tbe jury: “(1) Was tbe land in controversy paid for in whole or in part with tbe funds of the defendant, Lydia J. Aiken, arising from tbe sale of ber real estate, and, if so, bow much of said fund was so applied, and when ? Say that $150 was paid 15th March, 1850. (2) If tbe land was purchased with ber funds, tbe proceeds of sale of ber real estate, did tbe plaintiff have notice of that fact at tbe date of bis mortgage from William E. Aiken, 23d July, 1861 ? *174Say be did. (3) Wbat was the annual value of said land? Say $70. (4) Did defendants, or either of them, commit waste on said land while in their possession, and, if so, to what amount ? Say there was no waste.” Upon the coming-in of the verdict, the plaintiff moved for judgment “notwithstanding the verdict.” And it appearing that the defendant, W. E. Aiken, and the defendant, Lydia J., intermarried in March, 1846, she being then 17 years of age; that in July, 3 848, the husband purchased the land in controversy for $218, taking to himself a deed in fee simple therefor, and in 1850 paying for it with his wife’s money, of which money $150 was derived from the sale of her land for partition; and the purchase having been made in July, 1848, and before November, 1848, when the act of the Legislature went into effect, preventing the sale of the wife’s land by the husband without her joinder — the husband had an estate by the curtesy in said land for the term of his life, which he could convey. The Court therefore gave the plaintiff judgment for the possession of the whole tract of land, and $70 damages for the detention of possession by defendants. From this judgment the defendants appeal to the Supreme Court, where the judgment was affirmed, and is reported in 78 N. C., 258. Upon the trial of this case at the Spring Term, 1900, of GeaNville Superior Court, the plaintiffs stated that the papers — the judgment roll — of the former action were lost, and diligent search had been made for them, and they could not be found. This was admitted by the defendant, and the plaintiffs then offered in evidence a duly-certified transcript of the record of the case in the Supreme Court, containing summons, pleadings, issues, and judgment of the Superior Court of Granville County, and the judgment of the Supreme Court; also a transcript of the trial, issues, and judgment of the Superior Court of Granville County at Spring Term, *1751879, upon the certifictae of the Supreme Court. This evidence was objected to by the defendant, but allowed by the Court, and this is the principal question involved in this appeal. As we understand the defendant, he objected to it upon the ground that a record could not be proved except by a transcript of the record of the Court. The defendant further contended that it was incompetent, and, if admitted, that it would prove nothing, because there was no judgment upon the issues; that it stood as a judgment upon demurrer, which proved nothing, as the judgment “notwithstanding the verdict” was equivalent to setting aside the verdict, and the record then would not be competent evidence, and would prove nothing. We do not agree with the defendant as to these contentions. The defendant is the same person that was planitiff in the former action. The plaintiffs are the heirs at law and assignees of the heirs at law of Lydia J. Aiken, the feme defendant in the former action, and the land in controversy is the same that was in controversy in the former action. So it would seem that there is every element contained in the record of the former trial necessary to constitute an estoppel, unless its effect is destroyed by the manner in which the judgment was rendered upon the record and issues found by the jury.

The first question to be considered is, was the transcript from the Supreme Court competent evidence ? And it seems to us that this is hardly a debatable question. Where it appears that there has been a record, and it is lost or destroyed, the same may be supplied by , other competent evidence. Mobley v. Watts, 98 N. C., 284; Cox v. Lumber Co., 124 N. C., 78, and cases cited. But, to our minds, this is not secondary evidence. It is a certified copy of the very record of the former trial, which is the proper way of proving a record, and probably the only way, if objection is made. Then, *176if it was competent to offer tbis transcript in evidence, as we bold it was, it was like a properly registered deed. It was competent evidence, though it might not prove what it was intended to prove. State v. Morris, 84 N. C., 756. It is competent evidence, whether it amounts to an estoppel or not. This evidence being competent' and properly admitted, in our opinion it constituted an estoppel. The issues and the findings of the jury in the first action are incorporated in, and made a part of, the judgment of the Court; and, although it is said that the plaintiff asked for judgment “notwithstanding the verdict,” he was entitled to judgment against the defendant on the issues — the verdict — as found by the jury, and he had a judgment against them upon the verdict. It is true that he got a judgment for more than he would have been entitled to upon the findings of the jury. But this was owing to the fact that the husband was entitled to a life estate, as his curtesy, under the law in existence at the time the wife acquired title. We do not discuss this part of the law of the case, as it is so fully discussed and so clearly stated in the opinion in Lyon v. Akin, supra. It seems to be held by high authority that in some cases a judgment upon demurrer works an, estoppel. Bigelow, Estop. 56. Also, that a verdict, in a case between the same parties where the subject-matter in litigation is the same, though the judgment is different, may work an estoppel. This is called an “estoppel by Verdict.” Bigelow, Estop., 90, 91. But, from 'the view we take of this case, it is not necessary to call into requisition either of these doctrines. The record being competent evidence, and the defendant having offered no evidence, it was sufficient to authorize the jury to find the verdict they did, even if it had not been an estoppel, as we think it was. State v. Morris, supra.

The defendant’s exception to the certificate of the Justice of the Peace to the deed of W. D. Vaughan and wife, and B. *177E. Tingen and wife to J. E. Sanderford, can not be sustained. Lineberger v. Tidwell, 104 N. C., 506; Robbins v. Harris, 96 N. C., 557.

Tbe exception taken by tbe defendant tbat plaintiffs bave not proved an ouster can not be sustained. Tbe defendant denied tbe plaintiffs’ title to- any part of tbe land, and pleaded tbat be is sole seised. Tbis was, in effect, to admit a demand and ouster. Allen v. Salinger, 103 N. C., 14; Cable v. Railway Co., 122 N. C., 893.

Tbe Judge did not direct tbe verdict, but instructed the jury, if they found certain facts, wbat tbeir verdict should be; and the fact tbat be wrote tbeir findings, if they agreed to them and returned them as tbeir verdict, did not vitiate tbe same, though it may bave been somewhat irregular. Wool v. Bond, 118 N. C., 1, 23 S. E., 923. So, upon a full consideration of tbe whole case, we are of tbe opinion tbat the judgment below should be affirmed.

Affirmed.