{ "id": 11254841, "name": "M. C. PROPST, Administrator, et als. v. LIZZIE CALDWELL et als.", "name_abbreviation": "Propst v. Caldwell", "decision_date": "1916-11-29", "docket_number": "", "first_page": "594", "last_page": "598", "citations": [ { "type": "official", "cite": "172 N.C. 594" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "119 N. C., 89", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654420 ], "opinion_index": 0, "case_paths": [ "/nc/119/0089-01" ] }, { "cite": "128 N. C., 131", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "171 N. C., 45", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "167 N. C., 203", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "157 N. C., 282", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657286 ], "opinion_index": 0, "case_paths": [ "/nc/157/0282-01" ] }, { "cite": "125 N. C., 64", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272895 ], "opinion_index": 0, "case_paths": [ "/nc/125/0064-01" ] }, { "cite": "169 N. C., 403", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "162 N. C., 180", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 } ], "analysis": { "cardinality": 539, "char_count": 11177, "ocr_confidence": 0.442, "pagerank": { "raw": 1.887006082545796e-07, "percentile": 0.7284669878436928 }, "sha256": "71c015852da8da395faec86b87c54b104793d2cc0d031480a8a32980c6b9fe52", "simhash": "1:1583a67c442fd73d", "word_count": 1962 }, "last_updated": "2023-07-14T19:21:58.562423+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "M. C. PROPST, Administrator, et als. v. LIZZIE CALDWELL et als." ], "opinions": [ { "text": "AlleN, J.\nThe effect upon the title of a decree in partition proceedings was considered in the concurring opinion in Weston v. Lumber Co., 162 N. C., 180, which was afterwards adopted as the opinion of the Court, Weston v. Lumber Co., 169 N. C., 403, and the following conclusions were reached:\n\u201c1. That at common law, as the only unity between tenants in common was one of possession, the judgment in partition had no effect except to sever the possession, and did not operate upon-the title.\n\u201c2. That at common law and now, partition may be had of estates less than a fee simple.\n\u201c3. That statutes have been passed in the different States which authorize an adjudication of title in partition proceedings.\n\u201c4. That under the statutes of this State, as they exist now, persons \u2018claiming real estate as tenants in common\u2019 may have partition; that upon a petition being filed, the court may appoint commissioners \u2018to divide and apportion such real estate among the several tenants in common\u2019; that the commissioners shall partition the land \u2018among the tenants in common according to their respective rights and interests therein, by dividing the land into equal shares in point of value as near as possible,\u2019 and shall make report, which, when confirmed, \u2018shall be binding among and between the claimants, their heirs and assigns.\u2019\n\u201c5. That when title is put in issue under the statute, the judgment is an estoppel as to that title.\u201d\nWe also quoted from Mr. Freeman, the author of the Work on Coten-ancy and Partition, as follows:\n\u201cWe have hereinbefore shown that, in many of the States, title may be put in issue and determined in suits for partition. We may assume that, even in those States, the title is not put in issue merely by the allegations necessary for a declaration in partition at common law, and that where nothing is known about the pleadings in such a suit, it will be presumed that title was not put in issue by them, nor determined in any judgment based on them. We apprehend, however, that whenever plaintiff alleges himself to be the owner in fee, or of any specified-estate, or avers any other ultimate fact under which he is entitled to relief, it becomes tbe duty of defendant either to concede or take issue with the allegation or averment, and that the judgment in. the action will be as conclusive as it would be upon a like issue in any other action.\u201d\nIt is also held with reference to judgments and decrees in other actions and proceedings, that they conclude parties and privies as to all issuable matter contained in the pleadings, and as to other matters within the scope of the pleadings, although not issuable in the technical sense, if they are material and relevant and are in fact investigated and determined. Tyler v. Capehart, 125 N. C., 64; Coltrane v. Laughlin, 157 N. C., 282; Ferebee v. Sawyer, 167 N. C., 203; Cropsey v. Markham, 171 N. C., 45.\nApplying these principles, we are of opinion the decree in the partition proceeding of 1883 operates as an estoppel and is a.bar to the further prosecution of this proceeding. ' -\nThe plaintiffs and the defendants in this proceeding are either parties or privies to the proceeding of 1883; they occupy the same relative position as plaintiffs and defendants, and the same tract of land is involved in each.\nIn the petition of 1883 it is alleged that R. C. Caldwell, one of the heirs of J. D. Caldwell, had died leaving a will by which he gave his undivided interest in the lands of his father to the children of J. M. Caldwell, who were parties and who represented the defendants in this proceeding.\nThis allegation was denied in the answer of the guardian ad litem, and in the answer of J. M. Caldwell the question is submitted to the court for decision \u201cupon inspection of said will.\u201d\nThe construction of the will of R. C. Caldwell, and the title of the children of J. M. Caldwell thereunder, were therefore directly in issue in the proceeding of 1883, and while the question was reserved at the time the order appointing commissioners to divide the lands was made, it was reserved \u201cfor further consideration,\u201d and when the final decree was entered it adjudged the title to the land in controversy to be in the defendants, which could not have been done without adopting the construction of the will of R. C. Caldwell for which the plaintiffs then contended, and which they now seek to repudiate.\nThe question of the correctness of this construction is not before us, because, as was said of a decree construing a will in a partition proceeding in Weeks v. McPhail, 128 N. C., 131: \u201cThe decree was not appealed from and is an estoppel upon the parties thereto and those claiming under them, though it may be erroneous in law (Silliman v. Whitaker, 119 N. C., 89) in the construction thus placed upon the terms of the devise.\u201d\nWe .are therefore of opinion that the ruling of his Honor ought to be approved and the judgment affirmed.\nAffirmed.", "type": "majority", "author": "AlleN, J." } ], "attorneys": [ "Maness & Sherrin, M. II. Caldwell, and W. G. Means for 'plaintiffs.", "H. S. Williams and Stevjart & McRae for defendants." ], "corrections": "", "head_matter": "M. C. PROPST, Administrator, et als. v. LIZZIE CALDWELL et als.\n(Filed 29 November, 1916.)\n1. Partition \u2014 Title\u2014Judgments\u2014Estoppel.\nWhile ordinarily the title to lands is not adjudicated in proceedings to partition them, it may be put at issue by a party thereto properly pleading it; and where the lands are. ordered to be'partitioned, reserving the question of title, and a final judgment entered, adjudicating it, the judgment so entered will operate as an estoppel in another and independent action between the parties and privies calling it into question.\n2. Judgments \u2014 Estoppel\u2014Parties\u2014Privies.\nJudgments and decrees of court regularly entered will conclude parties and privies as to all issuable matter contained in the pleadings, or other matter within the scope thereof, though not issuahle in a technical sense, if they are material and relevant or are in fact investigated and determined.\n8. Partition \u2014 Judgments\u2014Estoppels\u2014Wills.\nWhere in proceedings to partition lands the question as to whether certain devises under the terms of a will were entitled to their part of the lands or its proceeds, or whether they were to he held in trust for them, has properly been put in issue and determined by final judgment therein, it is Held, that the parties and privies thereto are estopped in an independent action to question the correct interpretation of this clause of the will.\nCivil actioN tried, before Carter, J., at April Term, 1916, of Meck-LBNBURG.\nTbis is a proceeding to sell land for partition.\nThe land described in the petition and other lands formerly belonged to J. D. Caldwell, who died intestate prior to 1881, leaving several children as his heirs at law, and among them E. 0. Caldwell and John M. Caldwell.\nIn 1881 E. 0. Caldwell died leaving a will, the material parts of which are as follows:\n\u201cItem 1st. It is my will that all my just debts and funeral expenses be paid by my executor as soon after my decease as practicable.\n\u201cItem 2d. I will to each of my brothers and sisters the sum of $1.\n\u201cItem 3d. I will to my namesake, Walter Calvin Caldwell (my brother John\u2019s son), a good collegiate education, all the expenses of said education to be paid for out of any property of which I may die possessed of.\n\u201cItem 4th. I will that all my property, real and personal, be used by my executor in educating my brother John\u2019s children; that is, all that is not needed to educate my namesake above mentioned, he to have the preference.\n\u201cItem 5th. I will that my executor furnish to my mother the same amount of living I have been in the habit of doing yearly, and that left to his judgment.\n\u201cItem 6th. I will that my executor have the power to use all of my estate, real and personal, for the best interest in educating his children.\n\u201cItem Ith. I will to my nephew D. G-. Caldwell $100 to be used in buying' books for his profession.\n\u201cItem 8th. I do hereby constitute and appoint my brother John M. Caldwell my lawful executor to execute this my last will and testament according to the true intent and meaning of the same. Given under my hand and seal this the 9th day of July, 1881.\u201d\nIn 1883 a proceeding was commenced for the partition of all the lands of J. I). Caldwell among his heirs, in which the parties under whom the plaintiffs in this proceeding claim were plaintiffs, and the children of J. M. Caldwell, the defendants in this proceeding, and J. M. Caldwell, were defendants.\nIt is alleged, among other things in the petition of 1883, \u201cThat in October, 1881, B. 0. Caldwell died in the county of Cabarrus, State\" aforesaid, first having made and published a last will and testament, by which said will he gave his undivided interest in the aforesaid tract of land to the infant defendants, Walter 0., S. L., D. 0., M. L., L. A., F. Y., J. L., and J. M. Caldwell, to be applied first to the education of the said \"Walter C. Caldwell, and any balance or remainder of said undivided interest in said real estate to be equally divided between the other infant defendants above named,\u201d and further, \u201cand Walter 0. Caldwell and the seven other infant defendants are entitled to five twenty-eighths of the whole of said estate.\u201d These last were the children of J. M. Caldwell.\nThe guardian ad litem for the children of J. M. Caldwell filed an answer to this paragraph of the |>etition as follows:\n\u201cSecond. That the allegation in the fourth section, that after the education of the defendant Walter C. Caldwell the balance of the said interest is to be divided among the other infant defendants, is not true; but, on the contrary, this defendant avers that he is advised that by a proj)er construction of the said will of B. 0. Caldwell, deceased, J. M. Caldwell, the father of said infant defendants, is constituted a trustee of the said property with instructions to apply the same to the education of his said children, the said Walter C. Caldwell having always the preference.\u201d\nThe said J. M. Caldwell, who was a defendant, and who is now dead, filed answer to the petition as follows:\n\u201cJ. M. Caldwell, Sr., defendant in the above action, answering the complaint, says:\n\u201cFirst. That the facts set forth in the said complaint are true with the exception of the allegations of the fourth section as to the disposition made by the will of B. C. Caldwell, deceased, and as to these allegations he submits the same to the judgment of the court upon inspection of the said will.\u201d\nIn October, 1S83, an order was made in said proceeding appointing commissioners to divide the lands, but providing therein: \u201cThat the question as to the rights of the infant defendants under the will of B. 0. Caldwell, deceased, be and the same is reserved by the court for further consideration.\u201d\nThe commissioners made report in which the land described in this action was allotted to. the defendants in this action and to those under whom they claim, and a final decree was entered confirming the report.\nThe defendants in this action pleaded the partition proceeding of 1883 as an estoppel.\nHis Honor sustained the plea, and the plaintiffs excepted and appealed from the judgment rendered in favor of the defendants.\nManess & Sherrin, M. II. Caldwell, and W. G. Means for 'plaintiffs.\nH. S. Williams and Stevjart & McRae for defendants." }, "file_name": "0594-01", "first_page_order": 660, "last_page_order": 664 }