Rogers v. . Holt , 62 N.C. 108 ( 1867 )

The bill alleged that at Fall Term, 1862, of ALAMANCE, the complainants had filed a petition to sell a tract of land (describing it) of which they were tenants in common; that the sale having been ordered, the defendant, Holt, upon 24 January, 1863, became the last and highest bidder at the price of $7,257.51, and gave bond with a surety therefor; that in November, 1863, one Albright filed in the office of the Clerk and Master a bid for the land, at an advance beyond Holt's bid of $1,088.62, and upon these bids having been reported to the court at Fall Term, 1863, the biddings were reopened immediately, and thereupon Holt became purchaser at the sum of $10,000, giving another bond, with security, for the excess beyond his former bid, and that this having been reported to the court at the same term, the sale was confirmed; that these proceedings took place during the late civil war, when (109) the de facto government, called "the Confederate States of America," had issued immense amounts of paper money, dependent alone upon the success and good faith of said de facto government, and at the sale it was probable, and soon became manifest, that to accept payment in that medium would be to sacrifice the consideration; that, therefore, they notified the Clerk and Master not to receive, and the purchaser not to pay, Confederate paper for said debt; that after the surrender of the armies of the Confederate States, they notified Holt that as the sale was made at an extravagant price, owing to the inflation of the currency, they did not expect to be paid the full sum called for in his bonds, but would accept the reasonable value of the land, which is about $3,000, and that, at Spring Term, 1866, they proposed to him in open court to set aside the order confirming the sale, and to expose the land to a new sale, etc., which he refused; that he has been in occupation of the land since January, 1863, cultivating and clearing it in a manner wasteful and destructive, and greatly impairing its value.

The prayer was, that Holt and the other defendants who were his sureties on the bonds, might be decreed to pay the true value of the land, with compensation for the rents and profits; that for this purpose the land should be sold; that inquiry might be made as to the injury done the land by waste, etc., and that the bonds given by the defendants might be resorted to, to make good any deficiency remaining after the sale; and for other relief. It is a well settled principle of equity pleading, that a decree substantially between the same parties and for the same (110) subject matter, which is in its nature final, or may be afterwards made so by order of the court, is a bar to a new suit for the same cause. Story Eq. Pl., sec. 791; Mit. Eq. Pl., by Jeremy, 237.

It is usual to plead a decree in a former suit in bar to a second suit for the same thing, but when the second bill itself sets forth the substance of the pleadings in the former suit and the decree given in it, and alleges facts which, if established, would entitle the complainant to the same measure of relief as that to which the facts set forth in the former bill entitle him, the defendant may, for that cause, demur to the second bill. Jenkins v. Johnston, 57 N.C. 149; Davis v. Hall, Ibid, 403.

In the case at bar the bill professes to state the substance of the proceedings in the former suit, and the decree made therein, and as the defendant has demurred to the bill, the question is raised whether the complainants have stated in it facts which, if admitted or established by proof, would entitle them to the same relief, and no other, as they might have obtained under the former decree. That the complainants might, in their former suit, which is now pending in the Court of Equity for the county of Alamance, have the full measure of relief which they now seek, is clearly established by Singeltary v. Whitaker, ante, 77, and Cotton, exparte, ante, 79. These cases assert the power of the Court of Equity, upon petition for the sale of land for the benefit of infants, to compel the purchaser, by orders made in the cause, to perform specifically his contract of purchase, and that in doing this they may compel him to pay the purchase money by a decree in personam, or give a judgment or decree for it, on motion, after ten days' notice; and, furthermore, that it may call in, and order to be cancelled, a deed for the land, improperly obtained before the payment of the purchase money. With such plenary power over the subject we can not doubt that the Court of Equity for Alamance can, by proper orders to be made in the suit by petition, now pending there, compel the (111) purchaser of the land therein ordered to be sold, to pay the full amount of his bids, or such other sum as the court, under the circumstances, may deem right and proper. If this be so, the present bill is unnecessary, was improperly filed, and being objected to by demurrer, must be dismissed.

We have examined all the cases referred to by the counsel for the complainants as supporting their present suit. In none of them do we find anything to impugn the conclusion at which we have arrived. InWhitted v. Webb, 22 N.C. 442, it is stated expressly that the defendant waived any advantage, if any he had, under the former decree, and upon that waiver an order for another account was made. Patton v.Thomson, 55 N.C. 285, was a case of a bill to impeach a sale made under a former decree, for alleged fraud; and no objection was raised to the court's proceeding in the second suit, either by plea, demurrer or otherwise. Trice v. Pratt, 21 N.C. 626; Green v. Crockett, 22 N.C. 390, and Shoffner v. Fogleman, 60 N.C. 564, were all bills filed for the purpose of adjusting equities between the purchasers under the judicial sale in the former suit, or between such purchasers and their sureties; and in not one of them, except that of Trice v. Pratt, was there any objection to the second suit. The object of the bill, in Trice v.Pratt, was to obtain a specific performance of a parol contract made between the purchasers of the land sold under an order of the Court of Equity in a petition by the heirs of the former owner. No legal title had been obtained by either of the purchasers under the decree of the court, and hence it was necessary to make the Clerk and Master a party, for the purpose of obtaining such title from him. It does not appear from the published report of the case that the heirs of the former owner were made parties at all, and as we can not see that there was any necessity that they should be parties, we take it for granted that they were not. Under these circumstances it was objected by the (112) defendant, Pratt, one of the purchasers, and the one who had bid off the land and claimed to be the sole purchaser, that the complainant, if entitled to any relief, might have obtained it by motion or petition to the court in the former suit. This court declined deciding whether the complainant might have had a summary remedy by a proceeding in the former suit, but took jurisdiction of the case upon the original bill, and upon the proofs granted the relief sought.

It is manifest that the second suit was neither between the same parties, nor for the same subject as the former, and it is not therefore any authority for the government of the present case, in which both parties and subject matter are substantially the same, or may be made so by orders in the former cause. The bill must be

PER CURIAM. Dismissed with costs. Cited: Whitaker v. Bond, post, 228; Gee v. Hines, post, 316; Baird v.Baird, post, 322; Mason v. Miles, 63 N.C. 566; Covington v. Ingram,64 N.C. 125; Council v. Rivers, 65 N.C. 55; Mann v. Blount, Ibid, 101;Clement v. Foster, 71 N.C. 37; Lord v. Beard, 79 N.C. 11; England v.Garner, 84 N.C. 214; Hudson v. Coble, 97 N.C. 263; Alexander v.Norwood, 118 N.C. 382.

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