{ "id": 8618947, "name": "JOHN STONE, JR., Substituted Plaintiff for MOSES GRIMES, v. AMELIA GUION, CICERO GUION and BUDDY GUION", "name_abbreviation": "Stone v. Guion", "decision_date": "1944-01-12", "docket_number": "", "first_page": "831", "last_page": "833", "citations": [ { "type": "official", "cite": "223 N.C. 831" } ], "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": "220 N. C., 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11307948 ], "opinion_index": -1, "case_paths": [ "/nc/220/0676-01" ] }, { "cite": "100 S. E., 883", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "178 N. C., 441", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272774 ], "opinion_index": 0, "case_paths": [ "/nc/178/0441-01" ] }, { "cite": "102 S. E., 269", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "179 N. C., 282", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655743 ], "opinion_index": 0, "case_paths": [ "/nc/179/0282-01" ] }, { "cite": "74 A. L. R., 138", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "153 Atl., 314", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "74 A. L. R., 135", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "26 S. E., 33", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "119 N. C., 450", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655310 ], "opinion_index": 0, "case_paths": [ "/nc/119/0450-01" ] } ], "analysis": { "cardinality": 394, "char_count": 7134, "ocr_confidence": 0.477, "pagerank": { "raw": 5.8591662004228935e-08, "percentile": 0.3652483214272338 }, "sha256": "d798987245d3286aee59dd292a7cb98194f5e4b3f03e7c0a71b2b0090a8f355e", "simhash": "1:e2678630744cee56", "word_count": 1255 }, "last_updated": "2023-07-14T18:13:50.990749+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JOHN STONE, JR., Substituted Plaintiff for MOSES GRIMES, v. AMELIA GUION, CICERO GUION and BUDDY GUION." ], "opinions": [ { "text": "DeNNY, J.\nThe plaintiff contends that Cicero Gui\u00f3n, husband of Amelia Gui\u00f3n, and her son, Buddy Gui\u00f3n, are bound by the judgment herein and may be dispossessed under the writ of possession issued pursuant thereto. This contention is based upon the general rule that \u201cAfter recovery of a judgment in favor of the plaintiff in an action of ejectment the defendant and all those in privity with him may be dispossessed under the writ of possession issued thereon, and that all persons acquiring possession from and under the defendant during the pendency of the-action are privies within the meaning of the rule. The parties defendant, their families, servants and tenants at sufferance are, of course, bound by the court\u2019s order in ejectment and may be dispossessed.\u201d 18 Am. Jur., see. 142, p. 113. The rule does not apply in the instant case. There is no privy in estate shown on this record to exist between Amelia Gui\u00f3n and her husband, Cicero Gui\u00f3n, or between her and her son, Buddy Guion. Shew v. Call, 119 N. C., 450, 26 S. E., 33. Quoting further from the above section of Am. Jur.: \u201cWhile the general rule is, as stated, that the defendant and all those in privity with him and who enter under, and acquire an interest in the premises from or through, him subsequent to the commencement of the action are bound by the judgment therein and are liable to be dispossessed thereunder, the converse of this rule is also equally well settled \u2014 namely, that no-person in possession of the premises claiming title thereto prior to, or at the time of, the commencement of the action can be dispossessed unless he was made a party to the suit so as to be bound by the judgment.\u201d\nThe plaintiff, having alleged, that Amelia Gui\u00f3n, Cicero Gui\u00f3n and Buddy Gui\u00f3n were in the unlawful and wrongful possession of the land be sought to recover, tbe burden was upon him to show unlawful and wrongful possession. This he failed to do in so far as Cicero Gui\u00f3n and Buddy Gui\u00f3n were concerned, in the opinion of the trial judge, which failure resulted in a judgment of involuntary nonsuit as to them. When the judgment of nonsuit was entered, the plaintiff did not appeal nor move to make Cicero Gui\u00f3n a party defendant, as the husband of Amelia Gui\u00f3n, but elected to proceed against Amelia Gui\u00f3n alone. Hence, neither Cicero Gui\u00f3n nor Buddy Gui\u00f3n was a party to the action when the final judgment was rendered. Therefore, the plaintiff is not entitled to an execution against Cicero Gui\u00f3n or Buddy Gui\u00f3n under and by virtue of the judgment rendered in this action.\nIn view of the status of the parties, and the disclaimer of title to the land in controversy by Amelia Gui\u00f3n, we think the ruling of the court below is correct.\nOn the facts as disclosed on this record, the filing of the disclaimer of title is tantamount to a voluntary dispossession and an ouster of Amelia Gui\u00f3n of all claim of right. A physical eviction of Amelia Gui\u00f3n from the premises would accomplish nothing more, since she has the legal right to live in the home and domicile-of her husband, Cicero Gui\u00f3n, who resides in a house situate on the land in controversy. \u201cNeither husband nor wife, without lawful cause, so long as the marital relation exists, can exclude the other from the home they have established\nby mutual and voluntary choice.\u201d 27 Am. Jur., 201; Kelley v. Kelley, 74 A. L. R., 135, 153 Atl., 314, see Annotation 74 A. L. R., 138, citing Hancock v. Davis, 179 N. C., 282, 102 S. E., 269, and Kornegay v. Price, 178 N. C., 441, 100 S. E., 883.\nThe character of the possession of Cicero Gui\u00f3n and Buddy Gui\u00f3n is not presented for determination on this record.\nThe judgment of the court below is\nAffirmed.", "type": "majority", "author": "DeNNY, J." } ], "attorneys": [ "F. D. IiaclceU and James B. Nance for plaintiff.", "L. J. Britt and McLean \u25a0& Stacy for defendant." ], "corrections": "", "head_matter": "JOHN STONE, JR., Substituted Plaintiff for MOSES GRIMES, v. AMELIA GUION, CICERO GUION and BUDDY GUION.\n(Filed 12 January, 1944.)\n1. Ejectment \u00a7 15: Execution \u00a7 34\u2014\nWhere plaintiff sued in ejectment three defendants, wife, husband and son, and at the close of the trial plaintiff was nonsuited as to the father and son, and no appeal taken, and on a subsequent trial plaintiff recovered judgment against the wife, and upon issuance of a writ of possession, the wife moved to vacate the writ on the ground that she disclaims title to the property and is living on the land in the home of her husband by reason of her marital rights, an order allowing the motion was proper.\n3. Ejectment \u00a7 9a\u2014\nNo person in possession of the premises claiming title thereto prior to, or at the time of, the commencement of the action can be dispossessed unless he was made a party to the suit so as to be bound by the judgment.\n3. Husband and Wife \u00a7 1\u2014\nNeither husband nor wife, without lawful cause, so long as the marital relation exists, can exclude the other from the home they have established by mutual and voluntary choice.\nAppeal by plaintiff from Carr, J., at April Term, 1943, of EobesoN.\nThis action has been before this Court twice previously, Grimes v. \u25a0Gui\u00f3n, 220 N. C., 676, 18 S. E. (2d), 170, and Stone, Substituted Plaintiff, v. Gui\u00f3n, 222 N. 0., 548, 23 S. E. (2d), 907.\nThe action was brought originally against Amelia Gui\u00f3n, Cicero \u2022Gui\u00f3n and Buddy Gui\u00f3n, and the complaint alleged the defendants were in the unlawful and wrongful possession of the land described therein. Amelia Gui\u00f3n filed ail answer and pleaded sole seizin of the land in controversy. Cicero Gui\u00f3n, her husband, and Buddy Gui\u00f3n, her son, filed & separate answer and denied they were in the unlawful and wrongful possession of said land. At the close of plaintiff\u2019s evidence in the trial below, Cicero and Buddy Gui\u00f3n moved for judgment as of nonsuit as to them. The motion was granted and no appeal was taken from said judgment.\nThe second appeal involved a review of the trial below, wherein the plaintiff John Stone, Jr., was adjudged the owner and entitled to the immediate possession of the tract of land in controversy and the defend.ant, Amelia Gui\u00f3n, was adjudged to be in the unlawful possession thereof. No error was found in said trial. Thereafter a writ of possession was issued and served on Amelia Gui\u00f3n by the Sheriff of Eobeson County, to eject her from the land and put the plaintiff, Stone, in possession. Amelia Gui\u00f3n moved to vacate the writ of possession on the ground that she disclaimed any further title to the property, in view of the Supreme Court\u2019s decision, and that she was now living i\u00f1 the home upon the land with her husband by reason of her marital rights. Whereupon, his Honor entered an order allowing defendant\u2019s motion to recall the execution issued against her and concluding therein as a matter of law upon the facts found that the defendant, Amelia Gui\u00f3n, having disclaimed title to the land in controversy, has a lawful right to remain in the home and domicile of her husband, Cicero Gui\u00f3n, situated upon the said land, until such time as the said Cicero Gui\u00f3n voluntarily surrenders the possession thereof or has been ejected therefrom by due-process of law.\nThe plaintiff appeals from the foregoing order to the Supreme Court and assigns error.\nF. D. IiaclceU and James B. Nance for plaintiff.\nL. J. Britt and McLean \u25a0& Stacy for defendant." }, "file_name": "0831-01", "first_page_order": 883, "last_page_order": 885 }