#### NEEDHAM ARMFIELD vs. DAVID MOORE & JAMES MOORE.

Where a fact has been agreed on or decided in a Court of record, neither of the parties thereto shall thereafter be allowed to call it in question, as long as the judgment or decree stands unreversed.

As, where A. and B. filed their petition in the County Court for a partition of slaves, alleging that they were tenants in common, and after decree made, and report of commissioners confirmed, A. sold his share '. — Held, in a suit between A.5s vendee and B., for the share of A. so sold, B. is estopped from denying A.’s title, though it should appear that A. was not, in truth, tenant in common, but that the share allotted to him belonged to B. en outer droit.

And as B. is estopped from asserting title en outer droit, a fortiori, is it no defence for him that the disputed title is outstanding in a third person.

This was an action of replevin, brought to recover two slaves, tried at Union Superior Court of Law, Spring term, 1851, before his Honor, Judge Battle. The following is the cáse transmitted to this Court:—

“ The plaintiff in support of his action, introduced one Leander Harhncss, who proved the execution of a bill of sale to him for the slaves in question, from one Jane Moore, bearing date 23d May, 1849; that in a few days thereafter the witness hired the said slaves, together with others from the plaintiff, and took them to Brewer’s gold mine, in South Carolina; that he kept possession of said slaves until September, 1849, when, on a certain Sunday, whilst witness was absent at a camp meeting, they suddenly disappeared without his knowledge. A witness named *158 Bolk was then called by the plaintiff/who testified that on the same day the said slaves disappeared, he saw them in the possession of the defendant, in a secret place, in Union Comity, and that the defendant, David Moore, informed him that they had been stolen from his child in North Carolina; and he had been down in South Carolina and had stolen them back.

The defendants, to justify the taking of the slaves, introduced the minutes of Union Comity Court, showing that letters of administration on the estate of one Melton Moore had been granted to the defendant, J-ames Moore, at January term, 1848; and proved that Melton Moore died in October, 1847. They then introduced one Vaughn, who testified that Melton Moore, in November, 1846, intermarried with one Jane Carnes, (under whom the plaintiff claimed,) in South Carolina, who was one of the daughters of Esther Carnes, of said State, and that a few days after their marriage, they came into North Carolina to reside. That, in the year 1845, the said 'Jane and her two sisters were living together — Jane being then about twenty-one years of age, and the other two younger — the youngest about seventeen. That one Thomas K. Cureton, who was the administrator with the will annexed of one Joshua Gordon, hired out the said slaves, with the other slaves which were bequeathed by said Joshua Gordon to the children of Esther Carnes, to the lowest bidder; and that he paid said Jane Carnes for keeping them that year; and that, in 1846, he hired out said slaves to one Robert Carnes. The defendants then introduced one H. Moore, who stated that all the slaves, bequeathed by said Gordon to the children of Esther Carnes, were, in January, 1847, brought by his brother James, who also intermarried with Catherine, the sister of Jane Carnes, into Union County; and that said slaves were in their possession until the death of Melton Moore, in the Fall of that year.

The plaintiff, for the purpose of showing that Melton & James Moore acquired no legal title, by virtue of their marital rights, to said property, put in evidence a copy of the will of Joshua Gordon, and of the letter of administration, with said mil annexed, to said Cureton by the ordinary of Lancaster District, South *159Carolina, (which form a part of the case sent up); and he also read in evidence the deposition of said Cureton, to show that as administrator, &c., he had never assented to tire said legacies. The plaintiff then introduced Elizabeth Harkness, (a sister of Jane Moore,) who testified that at the time Melton & James Moore obtained possession of said slaves in South Carolina, they took them clandestine^, and without the knowledge or consent of said Cureton.

The plaintiff then also offered in evidence a copy of the record of the County Court of Union, showing that at January Term of said Court, 1848, a petition was filed by James Moore and wife Catharine, Elizabeth Carnes by her guardian the said James, and Jane Moore, alleging that “they were tenants in common of four slaves, which descended to them from Joshua Gordon, deceased, their grandfather,” and praying a partition thereof between them. And it appeared by said record that a partition was regularly ordered by the said Court — a report thereof returned by the Commission^ ers appointed to make it, and the same confirmed by the Court; and that in the said partition the woman slave in controversy who afterwards had issue, fell to the lot of the said Jane Moore, who sold to the plaintiff, as above set forth.

For the plaintiff it was contended, 1. That the caption of the slaves in South Carolina by the defendants, was tortious and wrongful, and on that ground the plaintiff was entitled to a verdict. 2. That the defendants were estopped in consequence of the proceedings had in Union County Court from denying the title of Jane Moore. 3. That there was no evidence of the assent either express or implied, of the administrator cum testamento annexo of Gordon to the legacies bequeathed to the children of Esther Carnes, and no title therefore vested in Melton Moore during his life. His .Honor overruled the first and second grounds taken by the plaintiff; and instructed the jury that from the possession of the Moores in North Carolina, and the length of time that the administrator, with the will annexed, acquiesced in that possession, there was evidence from which they might infer his assent; and if they should be satisfied of such implied assent, they should find for the defendants — otherwise for the plaintiff. There *160were a verdict and judgment for the defendants, and the plaintiff appealed.”

This case was argued at a former term at Morganton, by

Wilson, for the plaintiff; and by

Osborne and Hutchinson, (and Moore, at this term) for the defendant.

PeaRson, J.

At January Term, 1848, of the Court of Pleas and Quarter Sessions for the County of Union, a petition was filed in the name of James Moore, one of the defendants, and Catharine his wife, Elizabeth Carnes, an infant by her guardian James Moore, and Jane Moore, setting forth that the said James, Elizabeth and Jane held in their possession as tenants in common four slaves “which had descended to the said Jane, Catharine and Elizabeth from their grandfather, one Joshua Gordon;” that Jane had intermarried in the year 1847 with one Melton Moore who is* since dead, and that Catharine had intermarried with James Moore. The prayer was, that commissioners he appointed to make partition; and such proceedings were thereupon had, that commissioners were appointed, who made partition by which one of the slaves was allotted to Jane Moore, one to James Moore, and the other two to Elizabeth, with a charge for equality of partition. At July Term, 1848, the report was filed and confirmed, and the parties respectively took possession of the negroes allotted to them. Afterwards, in May, 1849, Jane Moore sold the negro woman, who had been allotted to her, to the plaintiff, Armfield, who kept possession of her until September, 1849, when the defendant, James Moore, aided by his father, the other defendant, David Moore, took the woman and her child out of Armfield’s possession, who thereupon brought this action of replevin.

At January term, 1848, of the Court of Pleas and Quarter Sessions, for the County of Union, (the same term when the petition for partition was filed,) James Moore was appointed the administrator of Melton Moore, his deceased brother. The ground of defence to the action of replevin is that Jane Moore was not in fact entitled to one-third of the slaves, as a tenant in common, at the time of the partition; for that, in truth, that third part belonged to James Moore, as administrator of her deceased husband.

*161We concur with his Honor, who tried the case below, as to the matter of assent by the executor of Gordon, upon which point he put the case; but tire case evidently depends upon the question of estoppel, and in regard to that, we differ from his Honor.

According to my Lord Coke, an estoppel is that which concludes and “shuts a man’s mouth from speaking the truth.” With this forbidding introduction, a principle is announced, which lies at the foundation of all fair dealing between man and man, and without which, it would be impossible to administer law as a system. The harsh words, which the very learned commentator upon Littlleton uses, in giving a definition of this principle, are to be attributed to the fact that before his day “ the scholastic learning and subtle disquisition of the Norman lawyers ” (in the language of Blackstone,) had tortured this principle, so as to make it the means of great injustice; and the object of my Lord Coke was to denounce the abuse, which he says had got to be “ a very cunning and curious learning,” and was “odious;” and thereby restore the principle, and make it subserve its true puipose as a plain, practical ¡fair and necessary rule of law. The meaning of which is, that when a fact has been agreed on, of 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 unreversed; and when parties, by deed or solemn act, in pais, agree on a state of facts, and act on it, neither shall ever afterwards be allowed to gainsay a fact so agreed on, or be heard to dispute it: 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 truth. For instance., one is acquitted upon the trial of an indictment, and is afterwards indicted again for the same offence; he pleads autrefois acquit, to wit, the fact has been decided of record — not even the sovereign can be heard to gainsay it, although there be an allegation of proof, subsequently discovered. So, in a civil suit, if a fact be agreed on by the parties, or be found by a verdict, and the Court acts thereon and pronounces a judgment or decree, neither party can be afterwards heard to gainsay that fact, so long as the judgment or decree stands tmreversed. An allegation of the discovery of important evidence, after the admission .or trial, or a suggestion *162that the party made the admission of record under a mistake as to his rights, cannot be listened to, without upsetting the whole administration of the law as a system, and reducing it to a mere arbitrary and despotic proceeding, by which the Court in each case, according to its view of the circumstances, may see fit to decide, in the one way or the other.

So, if parties, by deed or matter in pais, agree on a state of facts,- and act thereon, neither shall afterwards be heard to say that any of tire facts were not true; as, if one sells a tract of land to which he has no title, and afterwards acquires title. Coke 352, a. Accordingly, Coke divides estoppels into suph as arise by u record,” by ec writing,” (by deed) and by “matter in pais.” Among the latter, he names partition, when made by consent, and no record is made thereof. But in our case, the facts were agreed on and presented to the Court in writing, and the same is made a matter of record; and the Court acts thereon, by appointing commissioners, whose report is afterwards confirmed, and the parties take possession in severalty, in pursuance thereof. One of the parties, Jane Moore, afterwards sells her slave to the plaintiff, who takes the slave into possession, and thereupon the defendant takes her away from him; and puts his defence on the suggestion, that when the partition was made, he admitted on the record that Jane Moore was a tenant in common, entitled to one third part of the negroes; but the admission was contrary to the truth, for that, in fact, he himself was entitled to that third part, as the administrator of his brother, the husband of the said Jane.

If partition, by matter in pais, estops, of course partition, by matter of record, estops. Here we have facts agreed on by the parties; entered on the record; partition and decree in pursuance thereof; possession in severalty, and acts of ownership by the respective parties; and in regard to the slave in controversy, a sale to a third person: And the question is, can the defendant, after his admission of record, and the decree of the Court thereon, and the acts of the parties in pursuance thereof, be heard to say that, in fact, Jane Moore was not a tenant in common? In other words, can he be heard to gainsay what he has said on record ?

A Court, professing to administer law as a system, ought not to *163allow one of the parties to the record to deny a fact, upon which the decree (remaining unreversed) was made, and thereby justify the high-handed measures resorted to by the defendants in this case, by way of a short cut, as the means of correcting an alleged mistake in the record. Possibly, if the defendant really acted under a mistake, a Court of Equity, where the rights of the purchaser can be fully protected, and the sums which may have been paid for equality of partition, properly adjusted and refunded, may have power to correct it. But certainly a Court of law, which acts by a direct and absolute judgment for the one side or the other, cannot allow a party to deny an admission which he has made in a Court of record.

Coke Lit. 170, and this case is put: husband and wife, tenants m special tail, have issue a daughter; the wife dies; the husband by a second wife has issue another daughter, and dies; the two daughters enter and make partition. The eldest is concluded from saying that the youngest is not heir, in respect of the privity in their persons; but the issue of the eldest, after her death, may avoid the partition by force of the Stat. de donis. So, if tenant in fee simple has issue two daughters, bastard eigne and mulier-puisne, who enter and make partition, the estoppel binds forever. Hargrave, in a note upon this passage, says “ that in a Coke on Littleton which he had with M. S. notes and references, the annotator observes, 1 if two make partition in a Court of record, when one of them had no right, he thereby shall gain a moiety by estoppel or conclusion. Bro. Nov. Cas. pt. 306. But otherwise, I conceive, of partition in pais, though the book speaketh generally.’ ”

In our case, the partition was in a Court of record, and the authorities are in point, without calling in aid any special circumstance. But there is a special circumstance in our case, making it almost precisely analogous to the two special cases put by Coke. Jane Moore had owned a third part of the slaves — she still claimed it — had a colorable title therefor — and her right was conceded by the partition of record, to which the administrator of her husband was a party, although not noticed as such. Coke Lit. 252, an estoppel must be certain; that is, the fact agreed on, or found by the jury, must be some particular fact, and not a generality, *164•or matter of inference. Here the fact agreed on is certain, to wit; that J ane Moore was entitled, as a tenant in common, to one-third part of.the four slaves. This is a full answer to Knight v. Cole, 1. Shower’s 151, so far as regards the 1st resolution, which alone was supposed to favor the view taken of this case in favor of the defendants. (The 2nd resolution will be referred to again.) The case was this: A. recovered against B. a judgment for ¿#600, and made J. S. and J. D. his executors and died. B. made C. his executor, and gave a legacy of ¿#5 to J. D., and died. J. D., by deed, acknowledged the receipt of the ¿#5 of C., and thereby released the said legacy and all actions, suits and demands which he had against C. It was adjudged that nothing was released but the ¿#5, upon the ground that the particular reference to the receipt of the ¿#5 excluded the idea of an intention to release the ¿#600; and so the case was made to turn on a question of construction. Here, there is no room for construction, because the particular fact is stated and set forth as a thing agreed on, upon which the Court and the parties act.

Again:, at the same page, 252, a, Coke says estoppels must be mutual, that is, if one side is bound the other must be. It only includes parties and privies, and does not extend to a stranger; 'whereupon the defendant, James Moore, says, that in the character of the administrator of his deceased brother, he was a stranger in regard to the petition for partition, and the other proceedings of record in the County Court of Union; and therefore in the character of administrator, he ought not to be concluded thereby. This is the only view of the case which has presented any difficulty; but after much consideration, we are of opinion, both upon the reason of the thing and upon authority, that the principle that one shall not be allowed to gainsay what he has admitted of record, and what the Court and the parties have acted on, applies; and the defendant is estopped from setting up a title which he .had at the time of the filing of the petition, at the time of the division, and at the time the report was filed and confirmed — although such title was held en auter droit.

When he filed the petition making the admission, and when the report was filed and confirmed, upon the supposition that Jane Moore had, as a tenant in common, one-third part of the negroes, *165he was entitled to one-third part derived from his wife, Elizabeth Carnes, was also entitled to one-third part, and we will suppose that he was entitled also to the other third part derived from his intestate: if any one had injured the property, he could in his own name have recovered damages as owner of two-thirds, without saying any thing about having derived title to this third from his wife, and that third from his intestate. If he had sold the ne-groes, both of his third parts would have passed, although the bill of sale was signed without any allusion to the mode in which he had derived title. Now, in effect, partition amounts to a mutual transfer of title to different parts; that is, one passes his right to that, to be held in severalty, in consideration of a transfer by the other to this, to be held in severalty. So each transfers to the other" a part of the whole, and the corpus is divided. Consequently, according to the record, James Moore has, in solemn form transferred to Jane Moore the negro woman in controversy, and now seeks to take her back upon an alleged mistake. .

Mr. Hargrave, in his note referred to, takes it as settled, that “ if partition is made in a Court of record, when one of the parties has no right, he shall thereby gain a moiety by estoppel or conclusion.” There is no distinction to take this case out of the rule thus announced by the very highest authority among the writers uvon the common law.

Again: In Tharp v. Tharp, 1 Ray. 235, it is held,if a release relates to a particular subject only, general words in it shall be confined to that subject; but it is added, if the release uses general words only, it shall be taken in a general sense, and most strongly against the releasor: as, when a release is made to A. of all actions, it releases all several actions, as well as all joint actions. “ So, if an executor releases all actions, it will extend to all actions which he hath in both rights; for, again, in the 2nd resolution, in Knight v. Cole, Shower’s 153, it is said, if an executor makes a deed for all of his goods, such as he holds as executor will not pass, for he has them en outer droit. But if he makes a deed for a thing in particular, it passes, and he shall not be after-wards heard to say that he acquired it en uuter droit. For this is cited Leon. 65, and several cases in the Year Books.

*166So, we conclude that the authorities, as well as the reason of the thing, are against the defendants.

But it was said by the defendant’s very learned counsel, Mr. Moore, that by looking at the will of Gordon, it appears the legal title is still in his executor, one Cureton, notwithstanding his assent; for that he was to hold the title as trustee for the infant grandchildren, and the title was thus in Cureton as trustee, at the time of the partition. If the defendant is estopped from setting up title in himself, as administrator of his brother, a fortiori, he is estopped from relying upon a title which may be outstanding in the executor of the grandfather of the wife of his brother.

Per Curiam. Judgment reversed, and venire de novo awarded.