#### J. B. BUCHANAN et al. v. A. B. HARRINGTON.

(Filed 13 April, 1910.)

Tenants in Common — Partition—Quantity of Interest — Estoppel— Deeds and Conveyances — Correction.

The quantity of the estate held by* tenants in common can be litigated and determined in proceedings for partition; and a judgment therein is a complete estoppel in a suit by one of them to establish that his cotenant held a less interest in the land in common, by reason of the mistake of the draftsman in writing the deed under which he claimed.

Appeal from Justice, J., at November (Special) Term, 1909, of Lee.

Tbe plaintiffs brought tbis action to correct tbe quantity of interest conveyed by tbe' plaintiffs to tbe defendant, by deed dated 11 March, 1902, in a certain tract of land therein described, upon tbe ground that tbe deed conveyed a one-balf undivided interest, instead of a one-balf of three-fourths undivided interest, alleging that tbe error was caused by tbe mistake or inadvertence of tbe draftsman, and was not discovered until some months thereafter; that plaintiffs and defendant knew that tbe feme plaintiff owned only a three-fourths interest, and that it was tbe intention of tbe plaintiffs to sell, and the defendant to buy, only a one-balf of the three-fourths interest, but tbe deed to defendant conveyed a one-balf interest in tbe entire tract. That, subsequently, in March, 1903, feme plaintiff purchased the outstanding one-fourth interest. Plaintiffs therefore prayed that tbe deed to defendant be corrected to speak tbe truth, and convey to him only one-balf of a three-fourths interest.

*334Tbe defendant denied some of tbe allegations of tbe complaint and admitted others, and specially pleaded as an estop-pel upon tbe plaintiff, tbe former judgment of tbe court, in wbicb it was adjudged that tbe /erne plaintiff and tbe defendant were tbe owners eacb of a one-half interest in tbe land; that tbe land was, by tbe decree of tbe court, actually partitioned between them, in accordance with that interest, and tbat there was a final decree confirming tbe partition; tbat tbe plaintiffs instituted against this defendant tbe former action, being a special proceeding for partition, and upon answer filed putting at issue tbe respective interest in the land of tbe feme plaintiff and defendant, and upon transfer of tbe cause to tbe Superior Court, a trial by a jury was bad, and a verdict rendered finding tbe interest of eacb to be one-balf; judgment was rendered upon tbe verdict; appeal taken by tbe plaintiffs to tbe Supreme Court; judgment affirmed (141 N. C., 39), and tbe actual partition made and finally determined. Tbe judgment roll offered supported tbe plea of tbe defendant.

Tbe plaintiffs offered evidence tending to support their allegations, and tendered issues presenting tbe mistake of tbe draftsman. *

Ilis Honor, after bearing tbe evidence, submitted only one issue, to wit: “Are tbe plaintiffs estopped by tbe former judgment in tbe case between tbe same parties for partition of tbe land now in controversy?” and instructed tbe jury to answer tbe issue,- “Yes.”

Tbe plaintiffs excepted, and from tbe judgment appealed to this Court.

L. H. Gibbons and II. F. Seawell for plaintiffs.

Seawell & Mclver for defendant.

Manning, J.,

after stating tbe case: In 30 Cyc., 310, tbe author, Judge Freeman, thus sums up tbe law of the title concluded by partition proceedings under modern statutes: “We apprehend, however, tbat whenever plaintiff alleges himself to be tbe owner in fee, or of any specified estate, or avers any other ultimate fact under wbicb be is entitled to relief, it becomes tbe duty of tbe defendant either to concede or take issue with tbe allegation or averment, and tbat tbe judgment in -the action will be as conclusive as it would be upon a like issue in any other action. Tbe truth is, tbat a judgment in partition is as conclusive as any other. It does not create or manufacture a title, nor divest' tbe title of any one not actually or constructively a party to tbe suit; but it operates by way of estoppel; it prevents any of tbe parties from relitigating any of tbe issues *335presented for decision, and the decision of which necessarily entered into the judgment; and it divests all titles held by any of the parties at the institution of the suit.”

It has been held by this Court that the doctrine of estoppel, with its conclusive effect, applies to proceedings in partition, which, it has been held, are no longer merely possessory actions, but are proceedings in which the quantity of estate or the title can be litigated. Armfield v. Moore, 44 N. C., 157; Carter v. White, 134 N. C., 466; McCallum v. Chisholm, 146 N. C., 18. The pleadings, verdict and judgment in the partition proceedings, pleaded in the present action as an estoppel, show that the litigated question, presented by proper allegation by the plaintiffs and denied by the defendant, was the quantity of the estate held by each, and it deteimined that question. The correction of the deed,.now made the basis of the present action, could have been had in that proceeding when it was transferred to the Superior Court, by making proper amendments. This was held by this Court on the appeal from the judgment. Buchanan v. Harrington, 141 N. C., 39. “The plea of res judicata applies, except -in special cases, not only to the points upon which the court was required by the parties to form an opinion and pronounce judgment, but to every point which properly belonged to the subject in litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time and determined respecting it.” 1 Herman on Estoppel, sec. 123; Wagon Co. v. Byrd, 119 N. C., 460; Tuttle v. Harrill, 85 N. C., 456. If the Court were to correct the deed; it would not, therefore, avail the plaintiff to enlarge the quantity of the interest held by her in the land, as against the defendant and those claiming under him; the estoppel would be a complete bar. Harrison v. Bay, 108 N. C., 215. The Court would not do a vain thing. Steinback v. Relief Fire Insurance Co., 77 N. Y., 498; Sibert v. McAvoy, 15 Ill., 106; Thompson, receiver, v. Phoenix Insurance Co., 25 Fed., 296. We are, therefore, of the opinion that there was no error in the rulings of his Honor, and the judgment is affirmed.

No error.