{ "id": 8632332, "name": "W. J. CRAWFORD v. J. C. CRAWFORD", "name_abbreviation": "Crawford v. Crawford", "decision_date": "1939-01-04", "docket_number": "", "first_page": "614", "last_page": "619", "citations": [ { "type": "official", "cite": "214 N.C. 614" } ], "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": "199 S. E., 266", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "196 S. E., 869", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "213 N. C., 484", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628756 ], "opinion_index": 0, "case_paths": [ "/nc/213/0484-01" ] }, { "cite": "113 S. E., 769", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "184 N. C., 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271981 ], "opinion_index": 0, "case_paths": [ "/nc/184/0663-01" ] }, { "cite": "140 S. E., 598", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "194 N. C., 656", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615578 ], "opinion_index": 0, "case_paths": [ "/nc/194/0656-01" ] }, { "cite": "143 S. E., 244", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "195 N. C., 665", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631378 ], "opinion_index": 0, "case_paths": [ "/nc/195/0665-01" ] }, { "cite": "123 S. E., 68", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "187 N. C., 743", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654968 ], "opinion_index": 0, "case_paths": [ "/nc/187/0743-01" ] }, { "cite": "67 S. E., 747", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "152 N. C., 333", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271063 ], "opinion_index": 0, "case_paths": [ "/nc/152/0333-01" ] }, { "cite": "91 N. C., 148", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8686998 ], "opinion_index": 0, "case_paths": [ "/nc/91/0148-01" ] }, { "cite": "85 N. C., 399", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11278094 ], "opinion_index": 0, "case_paths": [ "/nc/85/0399-01" ] }, { "cite": "84 N. C., 652", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "43 N. C., 242", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8681791 ], "opinion_index": 0, "case_paths": [ "/nc/43/0242-01" ] }, { "cite": "154 S. E., 746", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "199 N. C., 462", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8604821 ], "opinion_index": 0, "case_paths": [ "/nc/199/0462-01" ] }, { "cite": "144 S. E., 535", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "196 N. C., 58", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623880 ], "opinion_index": 0, "case_paths": [ "/nc/196/0058-01" ] }, { "cite": "135 S. E., 288", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "192 N. C., 371", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622379 ], "opinion_index": 0, "case_paths": [ "/nc/192/0371-01" ] }, { "cite": "44 N. C., 157", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11275274 ], "opinion_index": 0, "case_paths": [ "/nc/44/0157-01" ] }, { "cite": "86 S. E., 809", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "170 N. C., 54", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657114 ], "opinion_index": 0, "case_paths": [ "/nc/170/0054-01" ] }, { "cite": "23 S. E., 179", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "117 N. C., 221", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652929 ], "opinion_index": 0, "case_paths": [ "/nc/117/0221-01" ] } ], "analysis": { "cardinality": 623, "char_count": 13284, "ocr_confidence": 0.452, "pagerank": { "raw": 2.638889830769003e-07, "percentile": 0.8229433453456166 }, "sha256": "5740db39b2038d833e3ed8e9db31fd64d8c3af247a2ea249ddac000de5512dad", "simhash": "1:0103ec326633f2d7", "word_count": 2274 }, "last_updated": "2023-07-14T22:38:13.292364+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BaeNiiill, J., took no part in the consideration or decision of this case." ], "parties": [ "W. J. CRAWFORD v. J. C. CRAWFORD." ], "opinions": [ { "text": "WiNBORNE, J.\nThe only question presented on this appeal: Is plaintiff estopped by the decree of the partition proceeding to claim interest in land in question under alleged parol agreement with defendant?\nAppellant presents this question on exception to refusal of motions for judgment as of nonsuit, and on exceptive assignments to these portions of the charge of the court: (1) \u201cThere has been offered in evidence a partition proceeding. I instruct you, as & matter of law, that if you find as contended for by the plaintiff, that his brother John bought the land for him at his request, with the oral understanding, he would be permitted to redeem it by paying him the purchase price and interest, and he had paid the purchase price and interest, most of it, that then the fact of partition proceeding was afterwards, to which Jim was one of the parties, would not divest his equitable estate in the land and his right to have it reconveyed as a matter of law.\u201d\n(2) \u201cBut if you find he held this land in trust for his brother under a parol contract, I charge you the fact there was a partition proceeding afterwards would not divest his brother Jim\u2019s equitable right in the land and the right to have it returned to him afterwards.\u201d\nDefendant\u2019s exceptions are well taken. We are of opinion that, on the facts presented on this record, the plaintiff is estopped by the allegations in petition, and by decree in the partition proceedings, to now set up claim contrary to the interest therein set forth.\nPlaintiff in his complaint here invites reference to said proceeding \u201cfor a full and complete description of the interest of this plaintiff\u201d in the land in question. The allegation there is that J. C. Crawford owns \u201cone-third undivided interest in the first tract containing 180 acres,\u201d and that W. J. Crawford \u201cowns no interest\u201d therein, \u201chaving conveyed his interest in said tract to J. C. Crawford.\u201d The decree of partition is to like effect. The commissioners acted in accordance therewith and their report is duly confirmed by the court.\nThe rights of plaintiff and defendant inter sese are brought directly in issue in the partition proceeding, and they are bound thereby. Baugert v. Blades, 117 N. C., 221, 23 S. E., 179; McKimmon v. Caulk, 170 N. C., 54, 86 S. E., 809.\nDeferring to definition of estoppel, Pearson, J., in Armfield v. Moore, 44 N. C., 157, said: \u201cThe meaning of which is, that when a fact has been agreed on, or decided in a court of record, neither of the parties shall be allowed to call it in question, and have it tried over again at any time thereafter, so long as the judgment or decree stands unre-versed; ... in other words, his mouth is shut, and he- shall not say, that is not true which he had before in a solemn manner asserted to be the truth.\u201d This is cited with approval in Hardison v. Everett, 192 N. C., 371, 135 S. E., 288; Distributing Co. v. Carraway, 196 N. C., 58, 144 S. E., 535; Rand v. Gillette, 199 N. C., 462, 154 S. E., 746.\nIn Distributing Co. v. Carraway, supra, Stacy, C. J., speaking for the Court, said: \u201cA claim made or position taken in a former action or judicial proceeding estops the party making such claim to take a conflicting position or to make an inconsistent claim in a subsequent action or judicial proceeding to the prejudice of his adversary, where the parties are the same and the same questions are involved.\u201d\nThe effect of judgments in partition proceedings has been the subject of discussion and for decision in many cases in this Court.\nIn Stewart v. Mizell, 43 N. C., 242, Ruffin, C. J., said: \u201cA judgment at law, in partition, is conclusive, in respect to the thing in which parties had an estate in common, and also in respect to the share to which each was entitled, and to the parcel allotted to each as his share in severalty.\u201d Ivey v. McKinnon, 84 N. C., 652; Turpin v. Kelly, 85 N. C., 399; Grantham v. Kennedy, 91 N. C., 148.\nIn Buchanan v. Harrington, 152 N. C., 333, 67 S. E., 747, Manning, J., quoting from 30 Cyc. 310, says in part: \u201c \u2018The truth is, that a judgment in partition is as conclusive as any other. It does not create or manufacture a title, nor divest the title of any one not actually or constructively a party to the suit; but it operates by way of estoppel; it l^revents any of the parties from relitigating any of the issues presented 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! \u201d Bank v. Leverette, 187 N. C., 743, 123 S. E., 68.\nIn McKimmon v. Caulk, supra, Allen, J., said: \u201cThe primary purpose of partition proceedings is to sever the unity of possession, but the parties may put the title in issue, and when they do so, and the title is adjudicated, the judgment is conclusive and binding.\u201d Buchanan v. Harrington, supra; Wallace v. Phillips, 195 N. C., 665, 143 S. E., 244.\nWhile the partition proceeding, is evidence introduced by defendant, it is proper to be considered on motion for judgment as of nonsuit under authority of Harrison v. R. R., 194 N. C., 656, 140 S. E., 598, where it is said: \u201cIn considering the last 'motion, the defendant\u2019s evidence, unless favorable to the plaintiff, is not to be taken into consideration, except when not in conflict with plaintiff\u2019s evidence, it may be used to explain or make clear that which has been offered by plaintiff,\u201d citing S. v. Fulcher, 184 N. C., 663, 113 S. E., 769. See also Hare v. Weil, 213 N. C., 484, 196 S. E., 869; Sellars v. Bank, ante, 300, 199 S. E., 266.\nThere is error in the refusal to sustain motion for judgment as of nonsuit, and the judgment below is\nReversed.\nBaeNiiill, J., took no part in the consideration or decision of this case.", "type": "majority", "author": "WiNBORNE, J." } ], "attorneys": [ "W. E. Lynch for plaintiff, appellee.", "McLean & Stacy and Varser, McIntyre & Henry for defendant, appellant." ], "corrections": "", "head_matter": "W. J. CRAWFORD v. J. C. CRAWFORD.\n(Filed 4 January, 1939.)\n1. Estoppel \u00a7 3 \u2014 Plaintiff held estopped by petition and judgment in partition from asserting parol trust against co-heir.\nPlaintiff\u2019s undivided interest in the locus in quo was sold under execution, and defendant, one of the co-heirs of the property-, purchased same at the sale. Plaintiff instituted this action to set up a parol trust in the land upon allegations that his co-heir agreed to purchase his interest at the sale and reconvey same to plaintiff upon the payment of the amount of the bid with interest. Subsequent to the alleged agreement, plaintiff joined with all the other heirs in a petition for partition of the tract containing the locus in quo and another tract also inherited by the parties, setting out the respective interest of the heirs in the lands, and partition was made in accordance therewith, and confirmation entered which declared that the partition should \u201cbe binding among and between the said petitioners, their heirs and assigns.\u201d In said proceedings plaintiff\u2019s interest was set out without claim to the interest sold under execution and without assertion of the parol trust sought to be established in this action. Held: The rights of plaintiff and defendant among themselves were brought directly in issue in the partition proceedings, and the petition and. judgment therein estops plaintiff from asserting the alleged parol trust.\n2. Partition \u00a7 10\u2014\nWhile partition does not create title nor affect the rights of persons not parties thereto, it determines the respective rights of the parties as among themselves, and as among themselves it operates as an estoppel against an assertion of title at variance with the judgment therein.\n3. Trial \u00a7 32b\u2014\nIn an action to establish a parol trust, defendant\u2019s evidence of the record in subsequent partition proceedings between the parties is properly considered upon defendant\u2019s motion to nonsuit on the ground of estoppel, since defendant\u2019s evidence is not in conflict with plaintiff\u2019s evidence, but is in explanation thereof.\nBarkhill, J., took no part in the consideration or decision of this case.\nAppeal by defendant from Sinclair, J., at July Civil Term, 1938, of ROBESON.\nCivil action to engraft a parol trust upon deed absolute upon its face.\nThe uncontroverted facts are these: Plaintiff and defendant, brothers, are two of nine children of Mary E. Crawford and her husband, J. W. Crawford, both now deceased. Upon the death of Mary E. Crawford, intestate, in the year 1916, seized and possessed of two tracts of land in Robeson County, one containing 180 acres and the other 48.4 acres, the title descended to her children subject to estate by curtesy of her husband, J. W. Crawford, all of whom survived her.\nPrior to October, 1922, plaintiff became indebted to J. W. Crawford, who obtained a judgment against him in the sum of $500, as alleged by plaintiff, upon which execution was issued, and plaintiff\u2019s undivided interest in the 180 acres tract was sold, the defendant becoming the purchaser thereof for $500, and on 6 November, 1922, Sheriff\u2019s deed therefor was executed and delivered to the defendant.\nFollowing the death of J. W. Crawford, 14 July, 1936, and pursuant to written agreement of the nine children, including plaintiff, dated 30 October, 1936, to become parties to proceeding in Superior Court \u201cfor the purpose of dividing\u201d said two tracts of land, and, under date 12 November, 1936, an ex parte petition for partition verified by defendant J. C. Crawford was filed. The petition alleges \u201cthat petitioners are tenants in common and are in possession of\u201d the said two tracts of land; that the interests of the petitioners in said land are as follows: (a) J. C. Crawford owns a one-ninth undivided interest in the second tract containing 48.4 acres and a one-third undivided interest in the first tract containing 180 acres . . . (h) W. J. Crawford owns one-ninth undivided interest in the second tract containing 48.4 acres above described, but owns no interest in the first tract containing 180 acres, having conveyed his interest in said tract to J. C. Crawford . . .\u201d By order dated 16 November, 1936, commissioners were appointed \u201cto divide the lands described in said petition into nine (9) shares and to allot to each of the petitioners his or her share in severalty\u201d in accordance with the interests set out in the petition. The commissioners divided and allotted the lands as directed \u2014 allotting to J. C. Crawford tract #3, containing 64.237 acres, and to W. J. Crawford tract #6, containing 5.129 acres, being bis interest in the 48.4 acres tract, report of wbicb was filed 13 February, 1937. No objection having been filed, the report was confirmed. The decree of confirmation, dated 15 March, 1937, declares that it \u201cshall be binding among and between the said petitioners, their heirs and assigns.\u201d The undisputed evidence shows that as soon as the land was divided, plaintiff took possession of that portion allotted to him.\nPlaintiff alleges and offered evidence tending to show that defendant purchased plaintiff\u2019s undivided interest in the 180 acres tract at said execution sale in 1922 under parol agreement to purchase, pay for, take title to and hold same for plaintiff, and to reconvey same to plaintiff upon payment of the purchase price; and that, though he has paid to Guy Crawford, a brother, at direction of defendant, all the principal and part of the interest, and stands ready, able, and willing to pay such balance as may be justly due upon being informed by defendant the amount thereof, his demand for conveyance is refused by defendant.\nDefendant denies the alleged agreement, denies that he authorized plaintiff to pay for him any amount to Guy Crawford, and offered evidence tending to support such denial.\nPlaintiff further alleges: \u201cThat prior to the institution of this action, the heirs at law of the said Mary E. Crawford instituted a partition proceeding in the Superior Court of Robeson County, North Carolina, for the purpose of having the shares owned by each of the children of the said Mary E. Crawford, allotted to them, and in said partition proceeding the interest of the plaintiff, W. J. Crawford, in the lands above described, has been allotted to the defendant, John 0. Crawford, and he is now holding the same as his property, which is a one-ninth interest in the whole tract of land above described. Reference to said partition proceeding and the allotment made by the commissioners is hereby referred to for a full and complete description of the interest of this plaintiff.\u201d\nTo this last allegation, defendant merely avers that only such lands as belonged to him were allotted to him in said proceeding.\nOn the trial below, motion of defendant for judgment as of nonsuit at the close of plaintiff\u2019s evidence was denied. Exception. Thereupon, in addition to oral testimony, defendant introduced the original record in the said partition proceeding. At the close of all the evidence, defendant renewed his motion for judgment as of nonsuit, which was overruled. Exception.\nThe case was submitted upon this issue: \u201cDoes the defendant hold title to a one-ninth interest in the Crawford home place described in the complaint, in trust for the use and benefit of the plaintiff, as alleged?\u201d \u2014 to which the jury answered, \u201cYes.\u201d\nFrom adverse judgment, defendant appeals to Supreme Court, and assigns error.\nW. E. Lynch for plaintiff, appellee.\nMcLean & Stacy and Varser, McIntyre & Henry for defendant, appellant." }, "file_name": "0614-01", "first_page_order": 682, "last_page_order": 687 }