The effect upon the title of a decree in partition proceedings was considered in the concurring opinion in Weston v. Lumber Co., 162 N. C., 180, which was afterwards adopted as the opinion of the Court, Weston v. Lumber Co., 169 N. C., 403, and the following conclusions were reached:
“1. That at common law, as the only unity between tenants in common was one of possession, the judgment in partition had no effect except to sever the possession, and did not operate upon-the title.
“2. That at common law and now, partition may be had of estates less than a fee simple.
“3. That statutes have been passed in the different States which authorize an adjudication of title in partition proceedings.
“4. That under the statutes of this State, as they exist now, persons ‘claiming real estate as tenants in common’ may have partition; that upon a petition being filed, the court may appoint commissioners ‘to divide and apportion such real estate among the several tenants in common’; that the commissioners shall partition the land ‘among the tenants in common according to their respective rights and interests therein, by dividing the land into equal shares in point of value as near as possible,’ and shall make report, which, when confirmed, ‘shall be binding among and between the claimants, their heirs and assigns.’
“5. That when title is put in issue under the statute, the judgment is an estoppel as to that title.”
We also quoted from Mr. Freeman, the author of the Work on Coten-ancy and Partition, as follows:
“We have hereinbefore shown that, in many of the States, title may be put in issue and determined in suits for partition. We may assume that, even in those States, the title is not put in issue merely by the allegations necessary for a declaration in partition at common law, and that where nothing is known about the pleadings in such a suit, it will be presumed that title was not put in issue by them, nor determined in any judgment based on them. We apprehend, however, that whenever plaintiff alleges himself to be the owner in fee, or of any specified-estate, or avers any other ultimate fact under which he is entitled to relief, it *598becomes tbe duty of defendant either to concede or take issue with the allegation or averment, and that the judgment in. the action will be as conclusive as it would be upon a like issue in any other action.”
It is also held with reference to judgments and decrees in other actions and proceedings, that they conclude parties and privies as to all issuable matter contained in the pleadings, and as to other matters within the scope of the pleadings, although not issuable in the technical sense, if they are material and relevant and are in fact investigated and determined. Tyler v. Capehart, 125 N. C., 64; Coltrane v. Laughlin, 157 N. C., 282; Ferebee v. Sawyer, 167 N. C., 203; Cropsey v. Markham, 171 N. C., 45.
Applying these principles, we are of opinion the decree in the partition proceeding of 1883 operates as an estoppel and is a.bar to the further prosecution of this proceeding. ' -
The plaintiffs and the defendants in this proceeding are either parties or privies to the proceeding of 1883; they occupy the same relative position as plaintiffs and defendants, and the same tract of land is involved in each.
In the petition of 1883 it is alleged that R. C. Caldwell, one of the heirs of J. D. Caldwell, had died leaving a will by which he gave his undivided interest in the lands of his father to the children of J. M. Caldwell, who were parties and who represented the defendants in this proceeding.
This allegation was denied in the answer of the guardian ad litem, and in the answer of J. M. Caldwell the question is submitted to the court for decision “upon inspection of said will.”
The construction of the will of R. C. Caldwell, and the title of the children of J. M. Caldwell thereunder, were therefore directly in issue in the proceeding of 1883, and while the question was reserved at the time the order appointing commissioners to divide the lands was made, it was reserved “for further consideration,” and when the final decree was entered it adjudged the title to the land in controversy to be in the defendants, which could not have been done without adopting the construction of the will of R. C. Caldwell for which the plaintiffs then contended, and which they now seek to repudiate.
The question of the correctness of this construction is not before us, because, as was said of a decree construing a will in a partition proceeding in Weeks v. McPhail, 128 N. C., 131: “The decree was not appealed from and is an estoppel upon the parties thereto and those claiming under them, though it may be erroneous in law (Silliman v. Whitaker, 119 N. C., 89) in the construction thus placed upon the terms of the devise.”
We .are therefore of opinion that the ruling of his Honor ought to be approved and the judgment affirmed.
Affirmed.