Exum v. . Cogdell

74 N.C. 139

• Court: Supreme Court of North Carolina
• Decided: January 5, 1876
• Status: Published

Opinion

Settueíj J.

Tlie plaintiff contends that the defendants are estopped to deny his title.

1. By a judgment in a former action, in which the present plaintiff was defendant and the present defendants were plaintiffs ; reported in 69 N. C. Rep. 464.

2. That the defendants are estopped by matter in pais; to-wit: the procuring of the Sheriff and the Register of Deeds, by the defendant Thompson and the purchaser, Eulghum, to-.so alter his deed as to embrace the land now in controversy, although the same had not been levied upon, nor sold by the Sheriff; and the conduct of the defendant, Thompson, in inducing the plaintiff to buy of Eulghum and sell to Dr. Exum.

A judgment ¡ to constitute an estoppel must be final, and upon the merits. It is not the recovery, but the matter alleged by the party, and upon which the recovery proceeds which ■creates the estoppel. Bigelow on Estoppel.

By reference to 69 N. C. Rep. 464, it will be seen that, that action, in the language of his Honor in the Superior Court,. “ went off upon a defect which precluded an inquiry into the merits.”

In Holmes v. Crowell, 73 N. C. Rep., 613, it is said, “in order to create an estoppel in pais, it must appear:

1. That the defendant knew of his title.

2. That plaintiff did not know and relied upon the defendants’s representations.

3. That the plaintiff was deceived.

In this case it appears, either by admission or the findings of the jury, that the plaintiff knew all the material facts in regard to tlie title, and could not have been deceived by misrepresentations of the defendant. In fact, he knew that he was purchasing under a deed which did not originally embrace the locus m quo, and which had been vitiated by alteration.

As to the question of evidence: If the purpose of the plaintiff, in asking the defendant, Thompson, upon his cross-examination, “ if he had put his interest in the locus in quo into bis schedule in bankruptcy,” was to impeach him on a collateral point, he had not laid the proper foundation for doing so, and it was immaterial; for how could his answer, one way or the other, affect the rights of the 'defendant, Cogdell, who, as assignee in bankruptcy, represented all creditors.

Indeed, if the defendant, Thompson, had been estopped by matter in pais, it would not necessarily have followed that Oogdell, who represents creditors, would have also been estopped.

The judgment of the Superior Court is affirmed.

Pee Cueiam. Judgment affirmed.