#### LEWIS W. STANCIL v. W. J. WILDER.

(Filed 17 March, 1943.)

1. Judgments § 30—

A judgment is decisive of the points raised by the pleadings or which might properly be predicated thereon. This does not embrace any matters which might have been brought into the litigation, or any causes of action which plaintiff might have joined, but which, in fact, are neither joined nor embraced in the pleadings.

2. Judgments § 32—

In a suit to foreclose a mortgage, which had been assigned to plaintiff, judgment of foreclosure is not res judicata, in a subsequent action by the mortgagor against the plaintiff in the foreclosure suit to have him declared a trustee holding the title to the lands foreclosed for the benefit of the mortgagor.

Appeal by plaintiff from Stevens, J., at September Term, 1942, of JOHNSTON.

Tbis is a civil action to bave tbe defendant declared a trustee bolding title for tbe plaintiff of certain lands formerly owned by tbe plaintiff and bid in at a foreclosure sale and deed taken therefor by tbe defendant.

Tbe plaintiff in bis complaint alleges tbat be was tbe owner of tbe locus in quo prior to 1922; tbat on 15 December, 1922, be executed a note for $2,000.00, payable in sixty-six semiannual installments to tbe Federal Land Bank of Columbia, wbicb note was secured by a mortgage on tbe locus in quo; tbat said note and mortgage were transferred to tbe defendant by tbe Land Bank pursuant to an agreement between tbe plaintiff and defendant tbat tbe defendant was to bold said note and mortgage in trust and to permit tbe plaintiff to pay them on tbe same terms as be was paying the Land Bank, as well also as to protect tbe plaintiff from a small balance due on a second note and mortgage for $2,163.16 which be bad executed 1 January, 1924, on tbe locus in quo, to one Creech, wbicb bad been assigned to one Godwin; tbat pursuant to *707said agreement tbe plaintiff bad surrendered to tbe defendant bis receipts for, and other evidences of payments of, tbe Creecb-Godwin indebtedness, and bad also written tbe Land Bank requesting tbe transfer of tbe note and mortgage it held to tbe defendant; that after tbe defendant bad procured tbe transfer to bimself of tbe Land Bank note and mortgage pursuant to tbe agreement between plaintiff and defendant, tbe defendant failed to make settlement of tbe junior note and mortgage to Oreecb, assigned to Godwin, as be agreed, and allowed said mortgage to be foreclosed, and instituted foreclosure action of tbe Land Bank mortgage wbieb bad been assigned to bim, and at tbe foreclosure sale thereof be, tbe defendant Milder, became tbe last and highest bidder for tbe locus in quo, and received deed therefor in bis own name.

Tbe plaintiff prays judgment “that tbe defendant be adjudged as bolding tbe lands described in tbe complaint in trust for tbe plaintiff,” that an accounting be bad, and that a receiver be appointed “to take charge of said trust property pending a final termination of tbe action.”

After filing answer tbe defendant lodged a motion to dismiss tbe plaintiff’s action for tbe reason that it is res judicata, which motion was allowed, and from judgment of dismissal predicated on this ruling, tbe plaintiff appealed, assigning error.

Thomas J. Moore and Partner & Lee for plaintiff, appellant.

JE. J. Wellons for defendant, appellee.

Schenck, J.

Tbe question posed by this appeal is: Mas tbe foreclosure action, in which M. J. Milder was plaintiff and Lewis M. Stancil and others were defendants, res judicata in tbe present action, wherein Lewis M. Stancil is plaintiff and M. J. Milder is defendant, to have tbe defendant declared a trustee bolding title for tbe plaintiff? Me are of the opinion, and so bold, that tbe answer is in tbe negative.

No reference is made in tbe pleadings in tbe foreclosure action instituted by M. J. Milder against Lewis M. Stancil to tbe agreement between tbe said Stancil and Milder alleged in tbe complaint as tbe basis of tbe present action. Tbe agreement alleged in tbe present action was in no wise put in issue in tbe foreclosure action, and was not- necessarily involved therein. Mbile it may be conceded that tbe alleged agreement between tbe plaintiff and defendant might have been pleaded in tbe foreclosure action, and might have been adjudicated therein, still tbe fact remains that it was not so pleaded, and tbe pleading thereof was not necessary to determine tbe issues involved .in tbe foreclosure action, mainly, tbe indebtedness of tbe defendant Stancil to tbe Land Bank, tbe assignment thereof to the plaintiff Milder, and the default in tbe payment thereof by the defendant Stancil.

*708The judgment entered in the foreclosure action was decisive only of the points raised by the pleadings, or which might properly he predicated upon them, and does not embrace any causes of action which might have been brought into the litigation, hut which were neither actually joined nor embraced in the pleadings.

The apposite law in the present action is clearly and succinctly stated in Tyler v. Capehart, 125 N. C., 64, 34 S. E., 108, quoted with approval in Shakespeare v. Land Co., 144 N. C., 516, 57 S. E., 213; and in Jefferson v. Sales Corp., 220 N. C., 76, 16 S. E. (2d), 462, as follows: “The judgment is decisive of the points raised by the pleadings or which might properly be predicated on them. This certainly does not embrace any matters which might have been brought into the litigation, or any causes of action which plaintiff might have joined, but which, in fact, are neither joined nor embraced in the pleadings.”

Without intending to express any opinion affecting the ultimate disposition of the case, we reverse the judgment below and direct a new trial.

Reversed,