The only question presented on this appeal: Is plaintiff estopped by the decree of the partition proceeding to claim interest in land in question under alleged parol agreement with defendant?
Appellant presents this question on exception to refusal of motions for judgment as of nonsuit, and on exceptive assignments to these portions of the charge of the court: (1) “There has been offered in evidence a partition proceeding. I instruct you, as & matter of law, that if you find as contended for by the plaintiff, that his brother John bought the land for him at his request, with the oral understanding, he would be permitted to redeem it by paying him the purchase price and interest, and he had paid the purchase price and interest, most of it, that then the fact of partition proceeding was afterwards, to which Jim was one of the parties, would not divest his equitable estate in the land and his right to have it reconveyed as a matter of law.”
(2) “But if you find he held this land in trust for his brother under a parol contract, I charge you the fact there was a partition proceeding afterwards would not divest his brother Jim’s equitable right in the land and the right to have it returned to him afterwards.”
Defendant’s exceptions are well taken. We are of opinion that, on the facts presented on this record, the plaintiff is estopped by the allegations in petition, and by decree in the partition proceedings, to now set up claim contrary to the interest therein set forth.
Plaintiff in his complaint here invites reference to said proceeding “for a full and complete description of the interest of this plaintiff” in the land in question. The allegation there is that J. C. Crawford owns “one-third undivided interest in the first tract containing 180 acres,” and that W. J. Crawford “owns no interest” therein, “having conveyed his interest in said tract to J. C. Crawford.” The decree of partition is to like effect. The commissioners acted in accordance therewith and their report is duly confirmed by the court.
The rights of plaintiff and defendant inter sese are brought directly in issue in the partition proceeding, and they are bound thereby. Baugert v. Blades, 117 N. C., 221, 23 S. E., 179; McKimmon v. Caulk, 170 N. C., 54, 86 S. E., 809.
Deferring to definition of estoppel, Pearson, J., in Armfield v. Moore, 44 N. C., 157, said: “The meaning of which is, that when a fact has *618been agreed on, or decided in a court of record, neither of the parties shall be allowed to call it in question, and have it tried over again at any time thereafter, so long as the judgment or decree stands unre-versed; ... in other words, his mouth is shut, and he- shall not say, that is not true which he had before in a solemn manner asserted to be the truth.” This is cited with approval in Hardison v. Everett, 192 N. C., 371, 135 S. E., 288; Distributing Co. v. Carraway, 196 N. C., 58, 144 S. E., 535; Rand v. Gillette, 199 N. C., 462, 154 S. E., 746.
In Distributing Co. v. Carraway, supra, Stacy, C. J., speaking for the Court, said: “A claim made or position taken in a former action or judicial proceeding estops the party making such claim to take a conflicting position or to make an inconsistent claim in a subsequent action or judicial proceeding to the prejudice of his adversary, where the parties are the same and the same questions are involved.”
The effect of judgments in partition proceedings has been the subject of discussion and for decision in many cases in this Court.
In Stewart v. Mizell, 43 N. C., 242, Ruffin, C. J., said: “A judgment at law, in partition, is conclusive, in respect to the thing in which parties had an estate in common, and also in respect to the share to which each was entitled, and to the parcel allotted to each as his share in severalty.” Ivey v. McKinnon, 84 N. C., 652; Turpin v. Kelly, 85 N. C., 399; Grantham v. Kennedy, 91 N. C., 148.
In Buchanan v. Harrington, 152 N. C., 333, 67 S. E., 747, Manning, J., quoting from 30 Cyc. 310, says in part: “ ‘The truth is, that a judgment in partition is as conclusive as any other. It does not create or manufacture a title, nor divest the title of any one not actually or constructively a party to the suit; but it operates by way of estoppel; it l^revents any of the parties from relitigating any of the issues presented for decision, and the decision of which necessarily entered into the judgment, and it divests all titles held by any of the parties at the institution of the suit! ” Bank v. Leverette, 187 N. C., 743, 123 S. E., 68.
In McKimmon v. Caulk, supra, Allen, J., said: “The primary purpose of partition proceedings is to sever the unity of possession, but the parties may put the title in issue, and when they do so, and the title is adjudicated, the judgment is conclusive and binding.” Buchanan v. Harrington, supra; Wallace v. Phillips, 195 N. C., 665, 143 S. E., 244.
While the partition proceeding, is evidence introduced by defendant, it is proper to be considered on motion for judgment as of nonsuit under authority of Harrison v. R. R., 194 N. C., 656, 140 S. E., 598, where it is said: “In considering the last 'motion, the defendant’s evidence, unless favorable to the plaintiff, is not to be taken into consideration, except when not in conflict with plaintiff’s evidence, it may be used to *619explain or make clear that which has been offered by plaintiff,” citing S. v. Fulcher, 184 N. C., 663, 113 S. E., 769. See also Hare v. Weil, 213 N. C., 484, 196 S. E., 869; Sellars v. Bank, ante, 300, 199 S. E., 266.
There is error in the refusal to sustain motion for judgment as of nonsuit, and the judgment below is
BaeNiiill, J., took no part in the consideration or decision of this case.