#### J. C. McMILLAN v. E. W. TEACHEY.

(Filed 21 October, 1914.)

Judgment — Estoppel.

In a former suit to foreclose a mortgage on certain lands fully described in tbe pleadings, the locus m quo was sold by a commissioner duly appointed for the purpose, under a decree 'ordering the sale, which conformed to the description contained in the pleadings, and the plaintiff in this action claims under the commissioner’s deed, containing the same description. The defendant in the present action was also a party defendant in the suit to foreclose, and it is held that he is estopped by the judgment therein from showing that the boundaries set out in the present case, and in the former suit, did not correctly describe the lands contained in the mortgage.

Appeal by defendant from Whedbee, J., at February Term, 1914, of DupliN.

*89Civil action to recover land. Verdict and judgment for plaintiff, and defendant excepted and appealed.

Stevens & Beasley for plaintiff.

Cf. R. Ward- and If. D. Williams for defendant.

Hoee, J.

On tbe bearing it was properly made to appear, from a perusal of tbe pleadings and tbe admission of tbe parties, made in open court on tbe trial, tbat plaintiff claimed tbe land as grantee under a deed from J. E. Bell, wbo purchased tbe same at a judicial sale, under decree in ease of Bradshaw, executor, v. E. W. Teachey and Frank Brice. Tbat action was against present defendant and said Brice, to foreclose a mortgage for tbe purchase money and establish a lien on tbe land in controversy, and tbe land was fully described in tbe pleadings in tbat cause, and same description was in report of commissioner wbo made tbe sale and in tbe deed to tbe purchaser, and in conveyance from said purchaser to tbe present defendant. There was judgment by default in tbe Bradshaw case, no defense thereto having been made or attempted.

It was admitted on tbe present trial, “Tbat E..W. Teachey, defendant in tbe present action, is tbe same E. W. Teachey wbo was one of tbe defendants in suit of Bradshaw, executor, v. Teachey; tbat be was in present possession of tbe land in controversy and tbat tbe plaintiff claims under tbe deed from J. E. Bell and by mesne conveyances from court commissioner in tbe case of Bradshaw, executor, etc., and tbat tbe land run and located according to the description set out in complaint in tbat case and described in tbe judgment therein and in tbe commissioner’s deed to Bell and in tbe deed from Bell to tbe present plaintiff includes tbe land in controversy and is tbe same land described in tbe complaint in tbe present action.”

Upon these facts and admissions we think bis Honor correctly held tbat plaintiff is tbe owner and entitled to tbe possession of tbe property, and tbat defendant E. W. Teachey is estopped from showing tbat the boundaries set out in tbe present case and in tbat of Bradshaw, executor, etc., did not correctly describe tbe land embraced in tbe mortgage, but tbat tbe same produced a wrongful interference, to tbe extent of 8 or 10 acres, with tbe boundaries of an adjoining tract which plaintiff now owns and did at tbe time tbe Bradshaw proceedings were instituted and decree therein was entered. It has been repeatedly decided with us tbat an estoppel by judgment will bind parties and privies “as to all issuable matters presented by tbe pleadings, and, though not issuable in tbe technical sense, it concludes, among other things, as to all matters within tbe scope of tbe pleading which are material and relevant and were in fact investigated and determined on tbe bearing.” Ferebee v. Sawyer, post, *90199; In re Will of Thomas F. Floyd, 161 N. C., 557; Coltrane v. Laughlin, 157 N. C., 282; Bunker v. Bunker, 140 N. C., 18; Tyler v. Capehart, 125 N. C., 64.

In the case of Bradshaw, executor, v. Teachey et al. tbe description of the land mortgaged, set forth by specific metes and bounds, was clearly issuable matter within the meaning of the principle, and, on that question, the parties to the proceedings and their privies are concluded. We were referred by counsel for defendant to Clark v. Aldridge, 162 N. C., 326, and other cases as authorities against the present decision, but we do not so interpret them. In Clark’s case, the one more particularly relied upon, the former suit was a partition proceeding among the heirs at law of D. S. Clark, deceased, and one Benjamin Aldridge was ■ allowed to become defendant and plead sole seizin as to a portion of the property, under deeds from D. S. Clark, the former owner and ancestor of the other parties; issue was joined on the delivery of these deeds, and, on a verdict sustaining delivery, it was held that Aldridge in the subsequent suit was not estopped from offering evidence as to the correct location of these deeds. On this question the decision of the Court was as follows: “A judgment in an action for lands which only involves the issue as to whether the deed under which a party claims title has been delivered, does not, as between parties or against privies who claim as volunteers, prevent the party claiming title under the deed from showing that the original grantor had gone upon the lands and made a physical survey of the same and that the locus m quo was included within the intended boundaries, though they do not so appear on the face of the deed as written, there being no question of boundaries raised in the action wherein the judgment relied on was rendered.”

Speaking to this question in the closing portion of the opinion, the Court said: “In such case (where boundary lines as contained in the deeds are in conflict with contemporaneous and physical location by the parties thereto) it has not been held that any change in the’phraseology of the deeds is required, and, therefore, where the only issue involved was as to the delivery of the deeds, and there was no question of boundary either raised, considered, or determined, a decree awarding to the party litigant the lands ‘contained in the deeds’ should, by correct interpretation, be construed to mean ‘as contained’ in the deeds correctly located according to law.”

It will thus be noted that in Aldridge’s case it was not proposed, as here, to change in any way the boundaries as shown in the deeds, but the testimony received was only to show, under established rules of evidence in such cases, where the boundaries were.

The other cases cited by counsel were chiefly those where the second suit was on a different cause of action from that presented and involved *91in tbe first, and where, as shown by Associate Justice Alien in McTeer Clothing Co. v. Hay, 163 N. C., 495, an estoppel in the former is only allowed to prevail as to relevant matter which was actually investigated and determined.

There is no error, and the judgment in plaintiff’s favor is affirmed.

No error.