Horner v. Dunnagan, 41 N.C. 371, 6 Ired. Eq. 371 (1849)

Dec. 1849 · Supreme Court of North Carolina

41 N.C. 371, 6 Ired. Eq. 371

THOMAS HORNER vs. TIMOTHY DUNNAGAN.

Where there has been a'suit between parties, an account taken and a decree thereon, neither party, while the decree remains in force, can bring a new suit for the purpose of recovering items, which it is alleged were omitted in tlie former account.

Cause removed from the Court of Equity of Orange County, at the Fall Term 1846.

In the year 1811, the plaintiff purchased of the defendant a tract of land at a stipulated price, part of which was paid at the time and the balance secured by two bonds payable in one and two years; No title was made, but a bond binding the defendant to make one. In 1839 the defendant brought an ejectment against the plaintiff to turn him out of the possession of the land, when Horner filed a bill in equity against the defendant, in which he prayed for an injunction to restrain him from taking out a writ of possession and to compel him to convey, alleging that all the money due for the land had been paid. In his answer the defendant denied the payment of the’ money. Whereupon the injunction previously granted was dissolved and the defendant let into possession. The cause being subsequently set for hearing, after replication, was transferred to the Supreme Court, where, upon the hearing;-there was a decree for an account. Theac» coant was taken by the Master, whose report was duty confirmed and a final decree rendered. The plaintiff regained possession in 1844. In the master’s account and report rendered in the Supreme Court, nothing was allowed for the rent of the land or for waste committed by the defendant. The present bill was filed in January 1845, to have an account of the rents during the time the defendant was in possession and also compensation for waste committed. In the original bill there was no claim for rents and waste, because at the time it was filed, nothing pf either kind was due.. The plaintiff ■ states, that, he did not, in taking the account before the master, embrace those subjects, because ‘‘he understood that he and the said Dunnagan were themselves to have that matter arbitrated, or otherwise settled, without further complicating the existing suit between them.” The defendant in his answer insists upon the decree rendered in the former case, as a bar to the relief sought in this bill: and positively denies, that there was 'any understanding or agreement between him and the plaintiff to settle by arbitration or otherwise, any question as to rent or waste,

Norwood, for the plaintiff.

II. Waddell, for the defendant.

Nash, J.

Interestreipublicceutfinissitlitium isamaxim, as well of Courts oí equity as of those of law. All the relief sought for by this bill was open to the plaintiff and could have been obtained by him in the former proceedings. It is his fault that he did not. His excuse for not having brought his claim for rent and waste before the master, when the account was taken, that “he understood those matters were to be settled by the parties themselves, by arbitration or some other mode,” is not supported by any evidence whatever, and the defendant expressly denies there was any such agreement. The plaintiff, in fact, does not aver it, but simply states, “he understood it” to be S'o.' He does not even say that the defendant in any man-M»«3"contributed to such belief. The decree in the first case is a final one, and, while it continues in force, puts an end to all litigation between the parties, upon the subject matter in dispute in that case.

Per Curiam.

Bill dismissed with costs. ’>