#### A. P. THORPE and W. S. WILKINSON v. HENRY C. PARKER, JOHN LEGGETT and JONAS JONES.

(Filed 17 September, 1930.)

Estoppel B b — Judgment roll may be introduced in evidence as estoppel without pleading such estoppel where it is not relied on as defense.

A former judgment involving the same controverted title to lands between the parties under whom the plaintiffs and defendants claim title to the locus in quo may be introduced in evidence by the plaintiff as an estoppel without pleading an estoppel by judgment, although when relied upon as a defense it must be pleaded.

Connor, J., not sitting.

Civil action, before Gowper, ¡Special Judge, at March Special Term, 1930, of Nash.

Tbe plaintiffs, alleging tbat they were tenants in common of tbe land in controversy, instituted an action of ejectment against tbe defendants. Tbe plaintiffs claim title under Cornelia Parker Bullock, and introduced tbe judgment roll in a former case entitled Cornelia Parker Bullock v. Jeffrey Parker, under whom tbe defendants claim title. Tbe defendants objected to tbis evidence. Tbe trial judge gave peremptory instructions to tbe jury, and from tbe verdict in favor of plaintiffs tbe defendants appeal.

Battle & Winslow and W. S. Wilkinson, Jr., for plaintiffs.

T. T. Thorne for defendants.

Per Curiam.

Tbe plaintiffs introduced tbe judgment roll in a former case between tbe parties under whom both plaintiffs and defendants respectively claim title. Tbis evidence was relied upon as an estoppel. Tbe defendants objected to tbe introduction of tbe evidence upon tbe ground tbat tbe estoppel by judgment was not pleaded, but tbe law has been settled contrary to tbe contention of tbe defendants. Stancill v. James, 126 N. C., 190, 35 S. E., 245; Moody v. Wike, 181 N. C., 509, 107 S. E., 457; Bullard v. Insurance Co., 189 N. C., 34, 126 S. E., 179. These decisions bold tbat tbe record and judgment, in a former action between tbe same parties or their privies, involving title to tbe same tract of land, may be offered in evidence, although not pleaded in tbe complaint; but when an estoppel is relied upon as a defense, it must be pleaded.

No error.

ConNOb, J., not sitting.