#### O. P. WHITAKER v. CLINGMAN GARREN.

(Filed 16 December, 1914.)

1. Processioning Lands — Issues—Title—Estoppel—Judgment.

While prior to the act of 1903, now Revisal, 717, title to lands were,' not affected by proceedings to procession lands, now the dividing line may be established without putting the title in issue, or the parties may also join issue upon the title; and where the first course is pursued a judgment in the proceeding is an estoppel as to where the line is located, and in the second event the case is transferred to the Superior Court in term upon issues joined as to the title, and a judgment of the court therein estops the parties both as to the title and the location of the line.

2. Same — Controverted Matters — Evidence—Interpretation of Statutes.

As to whether the party in an action involving title to lands is estopped by a judgment formerly rendered in processioning proceedings to deter*659mine tile true dividing line between himself and another, parol evidence is admissible to show whether or not the title as well as the boundary of the land was properly embraced in and determined by the judgment in former proceedings, or whether the issue as to the true location of the line was raised and determined by merely showing occupancy of the parties without involving the issue as to title, Revisal, sec. 326; and in this case it is held for error under the defendant’s exceptions that the trial judge ' withdrew from the consideration of the jury the processioning proceedings, which had been introduced, and instructed them not to. consider them in any view, it therein appearing that the parties were claiming under mesne conveyances under separate grants from the State, and that the court “settled and adjudged the true line between the said grants, and between the parties, in accordance with the defendant’s contention.”

Hoke, J., dissenting.

Appeal by defendant from Cline, J., at May Term, 1914, of Hen-DERSON.

This is an action to recover land, and for damages for cutting and removing timber from the disputed part thereof.

The plaintiff claims the land in dispute as part of a tract of land granted from the State to Alf. Williams, 17 December, 1862, and con- • veyed by Alf. Williams to W. B. Williams, with covenants q£ seizure and full warranty, 31 May, 1870, and by- Johnson Ashworth, administrator of W. B. Williams, to John W. Whitaker, 2 January, 1883, and conveyed by Sallie Whitaker ef al., representatives of John W. Whitaker, to O. P. Whitaker, 24 June, 1905.

There was a controvérsy as to the location of the Williams grant.

It was admitted by the plaintiff that the J. E. Lyda grant covers the land in controversy.

The defendant claims the land in dispute as a part of a tract of land granted from the State to J. E. Lyda, 1 December, 1871, and conveyed by J. E. Lydá to J. L. Whitaker, 24 January, 1884, and conveyed by J. L. Whitaker and wife, N. A. Whitaker, to J. O. Garren, and wife, Mary Garren, which wife, Mary Garren, is still living.

In the year 1906 the plaintiff O. P. Whitaker brought a special proceeding before the clerk of the Superior Court of Henderson County, against the defendant Clingman Garren herein, to have the lines between the above mentioned grants, and between the plaintiff O. P. Whitaker and the defendant Clingman Garren, run and established as provided by law in such proceedings; and at the same time his sister, Martha Ehodes, now Martha Laughter, brought a similar proceeding against the same defendant, Clingman Garren, for the same purpose; and said matters coming on to be heard, were consolidated and heard by the clerk, together, in which proceeding the clerk settled and adjudged the true line between the said grants, and between the parties thereto, according to the *660contention of and in favor of tbe defendant herein, and to be those lines shown on the map used in this case, towit: Those lines from the C 0, third corner of the Lyda grant, to the B 0 marked “A W,” the fourth corner of said Lyda grant, and from said B 0 to a locust, the fifth corner of said Lyda grant. And upon the hearing of this cause the aforesaid sister of O. P. Whitaker, Martha Laughter, having also brought a suit against the defendant herein, Clingman Garren, for the same purpose as. the suit of the said 0. P. Whitaker, both of said causes were tried together.

The processioning proceeding was introduced in evidence, but his Honor afterwards withdrew it from the jury and instructed them they must not be influenced by it in any way, and defendant excepted.

There was a verdict and judgment in favor of the plaintiff, and the defendant appealed.

Smith & Shipman for plaintiffs.

McD. Ray and O. V. F. Blythe for defendant.

AlleN, J.

Prior-to 1903 it was generally held that proceedings under the processioning act of 1893 did not affect the title.

The Court said in Williams v. Hughes, 124 N. C., 3: “We do not think it was intended to try title to land under this statute, but to procession, locate, and establish the lines between adjacent landowners.” In Wilson v. Alleghany Co., 124 N. C., 7, the proceeding “settles no rights or titles to property, but only locates the dividing lines between the parties.” In Vandyke v. Farris, 126 N. C., 746, it “does not prohibit either party from asserting his rights as to the title to the same land,” and in Midgett v. Midgett, 129 N. C., 21, “it settles nothing as to title.”

In 1903 an act was passed by the General Assembly (Bev., 717) providing that: “In special proceedings which have been or may hereafter be begun it shall be competent for any defendant or other party thereto to plead any equitable or other defense, or ask any equitable or other relief in the pleadings which it would be competent to ask in a civil action; and when such pleas are filed the clerk shall transfer the cause to the civil-issue docket for trial during term upon all issues raised by the pleadings. It shall be competent for the trial judge to allow amendments to the pleadings and interpleas in behalf of any person claiming an interest in the property, with a view to substantial justice between the parties.”

Since the enactment of this statute the parties may under the processioning act establish the dividing line without putting the title in issue, or they may join issue also upon the title.

*661If the first course is adopted tbe judgment is an estoppel as to where the line is located, but not as to title, and under the second the issues raised are transferred to the Superior Court in term and the judgment estops as to title and as to the location of the line. Parker v. Taylor, 133 N. C., 105; Davis v. Wall, 142 N. C., 452; Woody v. Fountain, 143 N. C., 70; Green v. Williams, 144 N. C., 63; Brown v. Hutchison, 155 N. C., 206.

The Court said in the Parker case: “This present action is for trespass in cutting timber beyond a dividing line which had thus been determined in a special proceeding formerly had between the plaintiff herein (defendant in that proceeding) and the parties under whom the defendants claim (plaintiffs in such former proceeding), and the defendants plead said judgment as an estoppel. The record of the former proceeding and judgment therein was pleaded and shown in evidence, and the plaintiff admitted that according to the line as located by said judgment the locus in quo was,on the defendants’ side thereof. Ilis Honor thereupon intimated an opinion that the plaintiff could not recover, in deference to which he took a nonsuit and appealed.

“There was no error. The line was located by a judgment to which the plaintiff and those under whom these defendants claim were parties. The plaintiff, who was defendant in the former action, did not therein raise any issue as to title and have it tried, as he might have done, and the adjudication as to this being the true boundary is res judicata. The judgment of the clerk ‘determining the location’ of the line is authorized by the statute, and is conclusive of that fact upon parties and privies to said action.” And in the Davis case: “It is true that a processioning proceeding is for a settlement of a boundary line, title not being involved; but if the defendant therein denies the title of the plaintiff, as well as the location of the boundary line, upon the issue of title thus raised the case would have been transferred to the Superior Court at term for trial, and tried as if the action had been originally brought in that court, just as when an issue of title is raised in proceedings of partition. Smith v. Johnson, 137 N. C., 43; Stanaland v. Rabon, 140 N. C., 202. Not having raised such issue, the defendant is estopped by the judgment in that action from denying the boundary thus determined to be the true line, and from now asserting title to any land beyond it. Parker v. Taylor, 133 N. C., 105.”

The real difficulty is in determining the effect and extent of the estop-pel when title is not in issue, and this arises because occupation of land is sufficient evidence of ownership for the purposes of the statute (Re-visal, sec. 326), and the difficulty must be solved by resort to the principles governing estoppels by judgment.

*662In Coltrane v. Laughlin, 157 N. C., 287, the Court said: “It is well recognized bere and elsewhere that when a court having jurisdiction of the -cause and the parties renders judgment therein, it estops the parties and their privies as to all issuable matter contained in the pleadings, and though not issuable in the technical sense, it concludes,, among other things, as to all matters within the scope of the pleadings which are material and relevant and were in fact investigated and determined on the hearing. Gillam v. Edmonson, 154 N. C., 127; Tyler v. Capehart, 125 N. C., 64; Tuttle v. Harrell, 85 N. C., 456; Fayerweather v. Ritch, 195 U. S., 277; Aurora City v. West, 75 U. S., 82, 103; Chamberlain v. Gaillard, 26 Ala., 504; 23 Cyc., pp. 1502-4-6. ‘A judgment is decisive of the points raised by the pleadings, or which might be properly predicated upon them; but does not embrace any matters which might have been brought into the litigation, or causes of action which the plaintiff might have joined, but which in fact are neither joined nor embraced by the pleadings.’ ”

Under the old rules of the common law the matters investigated and determined could only be ascertained by an inspection of the record; but now. parol evidence is admissible for that purpose. Yates v. Yates, 81 N. C., 397; Person v. Roberts, 159 N. C., 173; Clothing Co. v. Hay, 163 N. C., 499.

If, therefore, the judgment estops as to the matters put in issue and litigated and determined (and the statute would be useless if this effect cannot be given to it), and if these matters may be shown by parol, it follows that the extent of the estoppel depends on what is tried. •

If the parties to the proceeding are mere occupants, the adjudication as to the dividing line does not affect the title, and only determines the right to possession on either side of the line; but if they are adjoining owners, and the location of the deeds and grants under which they claim is put in issue and determined, they cannot afterwards litigate this-location and contend that the lines of their deeds and grants are at some other place than the one settled by the proceeding.

In neither case is the title adjudicated, although in many instances the location of the deeds and grants may have an important bearing as evidence on the trial of an issue of title.

This construction gives some vitality to the statute, and is fraught with no dangers, as the parties can always put the title in issue; and whether this is done or not, either party may appeal to the Superior Court in term, and have a hearing before a jury de novo.

If these principles are applied, it follows that his Honor was in error when he withdrew from the jury the processioning proceeding and instructed them they must not be influenced by anything that was done in that proceeding, as it appears from the case on appeal that the plain1 *663tiffs claim under tbe Williams grant, and tbe defendants under tbe Lyda grant; that one of tbe facts in controversy in tbis action is tbe location of tbe Williams grant, and tbat in tbe processioning proceeding tbe court “settled and adjudged tbe true line between tbe said grants, and between tbe parties thereto, according to tbe contention of and in favor of tbe defendant.”

A new trial is ordered.

New trial.

Hoke, J.,

dissenting: Tbe.primary purpose of proceedings of tbis character is to ascertain and establish an uncertain or disputed line between adjoining proprietors. In several well considered decisions of tbe Court it has been held tbat tbe parties may, by their pleadings, raise tbe issue as to title, and, when tbis is done, tbe statute directs tbat tbe cause be transferred to tbe Superior Court in term, and becomes, in effect, a civil action to try title to land.

Unless tbis issue is made and tbe cause transferred, tbe proceedings remain as they were instituted, before tbe clerk; and be has no jurisdiction to settle questions of title. He can only ascertain and define tbe disputed or doubtful line, and if, in tbe course of proceedings, it appears tbat tbe parties, under tbe guise of a proceeding to settle boundary, are in fact endeavoring, wittingly or unwittingly, to determine title, tbe clerk should dismiss tbe case; or if be does not, and proceeds to determine a dividing line, which in effect settles tbe title, bis decision is of none effect, and tbe litigants may, in a proper action, have tbe true title declared and, as an incident thereto, settle and determine tbe true boundary. Tbis is what our decisions mean when they bold, as they have in many cases, “Tbat title to land cannot be tried under tbe processioning act”; and further: “Tbat processioning proceedings bad between parties and tbe judgment of tbe clerk therein are no bar to an action of ejectment, subsequently instituted to determine tbe title between tbe same parties.” Midgette v. Midgette, 129 N. C., 21; Vandyke v. Farris, 126 N. C., 744.

It is true, as stated in tbe opinion, tbat “where tbe purpose of tbe proceeding is to settle a question of boundary, tbe judgment of tbe clerk should work an estoppel as to where tbe dividing .line between two tracts is”; but when, from a perusal of tbe pleadings and tbe facts in evidence, it clearly appears tbat tbe issue presented is not one of establishing" a divisional line, but is in fact and in truth an issue of title, tbe jurisdiction of tbe clerk is at an end, and bis judgment should not be allowed tbe effect of an estoppel; and so it is here. Tbis plaintiff, in a former suit, mistaking bis remedy, applied to tbe clerk to settle tbe boundary line between him and defendant. There was no issue *664of title raised by tbe pleadings. Tbe cause was not transferred, and tbe clerk proceeded to bear evidence and decide tbe issue, establishing tbe line as claimed by defendant. An examination of tbe former suit and tbe facts in evidence will sbow that establishment of tbe divisional line was not tbe matter in dispute at all, save as an incident of 'the graver question of title.

Plaintiff claimed under a grant to Alfred Williams, 12 December, 1862; defendant, under a grant to J. F. Lyda, in 1871; and tbe location of tbe Lyda grant, as claimed by defendant, will cover not less than two-tbirds of tbe Williams grant, located as claimed by plaintiff. And tbe clerk, to my mind, being entirely without jurisdiction, has proceeded to settle this issue.

True, be calls it a judgment settling a disputed line; but it was not tbe case of a dividing line at all, but a question of lappage, affecting the title to two-tbirds of tbe plaintiff’s property.

Tbe question of estoppel by judgment and tbe decisions thereon, so clearly stated in tbe opinion of tbe Court, are only applicable when tbe court rendering tbe judgment bad jurisdiction of tbe cause and tbe parties.

In this case tbe clerk was without jurisdiction to adjudicate or determine tbe question at issue, and, in my opinion, and under tbe numerous decisions on tbe subject, tbe court below was right in ignoring tbe action of tbe clerk and in trying tbe cause de novo.