Does the partition proceeding in Granville County preclude the petitioners from becoming caveators in Sampson County to set aside the will of Mrs. Marvin or Lottie Averett?
In order to arrive at a conclusion it is necessary to observe the chronology of facts. The caveators in the proceeding in Sampson County were the petitioners in the partition proceeding in Granville County and are the sole heirs at law of the alleged testatrix, Lottie Averett, and, if the caveat is successful, will inherit the land. The said land, of course, involved in this caveat proceeding is identically the same land involved in the partition proceeding in Granville. In the proceeding in Granville County the caveators were petitioners. They caused summons to be issued and filed a petition alleging that Lottie Averett owned a one-ninth undivided interest in said land. She died in Sampson County before the summons was served. Thereupon the caveators, as petitioners in Granville County, went back into court and asked for an alias summons against Marvin Averett, the alleged husband of Lottie Averett and her sole devisee. Thereupon Marvin Averett was brought into court in Gran-ville. Furthermore the caveators, as petitioners in Granville County, amended the original petition alleging the death of Lottie Averett, and that she had left a last will and testament “which was probated and filed in Sampson County, North Carolina, on 2 May, 1933, and by the terms of which she devised all her interest in the land involved in this proceeding to her husband, Marvin Averett; that the said Marvin Averett, according to the terms of said will, is now the owner of a one-ninth undivided fee-simple interest in and to said land.” Consequently, with full knowledge of the probate of the will in common form, and that the defendant, Marvin Averett, was sole devisee named therein, the *238caveators, as petitioners, further procured an order of sale for the land in Granville County, and after the sale had been had, filed exceptions to the sale upon the sole ground of inadequacy of price. Thereafter they proceeded to Sampson County to caveat the will, alleging that the will was void. It is manifest that, if such allegation should be sustained, the practical effect of it would be to deprive Marvin Averett of his interest in the land.
While strictly speaking, there are no parties to a caveat; nevertheless, for all practical purposes, the parties are the same, the land is the same, and the relationship of the parties to the land is the same.
The principle of law applicable to the facts may be found in Holloman v. R. R., 172 N. C., 372, as follows: “Where a person, has, with knowledge of the facts, acted or conducted himself in a particular manner, or asserted a particular claim, title, or right, he cannot afterwards assume a position inconsistent with such act, claim or conduct to the prejudice of another. ... A claim made or position taken in a former action or judicial proceeding will estop the party to make an inconsistent claim or take a conflicting position in a subsequent action or judicial proceeding to the prejudice of the adverse party, where the parties are the same and the same questions are involved.” See Tiddy v. Graves, 127 N. C., 502, 37 S. E., 513; Jenkins v. Renfrow, 151 N. C., 323, 66 S. E., 212; Owen v. Needham, 160 N. C., 381, 76 S. E., 211; Weston v. Lumber Co., 162 N. C., 166, 77 S. E., 430; Propst v. Caldwell, 172 N. C., 594, 90 S. E., 757; Ellis v. Ellis, 193 N. C., 216, 136 S. E., 350; Harvey v. Knitting Co., 197 N. C., 177, 148 S. E., 45.
It is insisted by the caveators that the issues in a caveat proceeding are not the same as those in partition. This is technically true. However, the practical result of sustaining the caveat is to dejirive Marvin Averett of the very land in Sampson, which the caveators in Granville alleged that he owned in fee simple. After knowledge of the death of Lottie Averett, and the probate of the will, the caveators could have asked to withdraw the amended petition and other proceedings in Gran-ville upon the ground that they were not in possession of the true facts and then proceed to caveat the will. This they did not do and the “door was shut.”
Affirmed.
Stacy, O. J., and CONNOR, J., dissenting.