Thorpe v. . Parker , 199 N.C. 451 ( 1930 )

CONNOR, J., not sitting. The plaintiffs, alleging that they were tenants in common of the land in controversy, instituted an action of ejectment against the defendants. The plaintiffs claim title under Cornelia Parker Bullock, and introduced the judgment roll in a former case entitled Cornelia Parker Bullock v. Jeffrey Parker, under whom the defendants claim title. The defendants objected to this evidence. The trial judge gave peremptory instructions to the jury, and from the verdict in favor of plaintiffs the defendants appeal. The plaintiffs introduced the judgment roll in a former case between the parties under whom both plaintiffs and defendants respectively claim title. This evidence was relied upon as an estoppel. The defendants objected to the introduction of the evidence upon the ground that the estoppel by judgment was not pleaded, but the law has been settled contrary to the contention of the defendants. Stancill v. James, 126 N.C. 190,35 S.E. 245; Moody v. Wike, 181 N.C. 509, 107 S.E. 457; Bullard v. InsuranceCo., 189 N.C. 34, 126 S.E. 179. These decisions hold that the record and judgment, in a former action between the same parties or their privies, involving title to the same tract of land, may be offered in evidence, although not pleaded in the complaint; but when an estoppel is relied upon as a defense, it must be pleaded.

No error.

CONNOR, J., not sitting.