Davis v. Hall, 57 N.C. 403, 4 Jones Eq. 403 (1859)

June 1859 · Supreme Court of North Carolina

57 N.C. 403, 4 Jones Eq. 403

SETH DAVIS, Adm'r, against THOMAS L. HALL, Executor.

It is usual to plead a decree in bar to a second suit for the same thing; but where the bill itself sets forth the substance of the pleadings in the former suit, and the decree given in it, and prays a discovery of facts contrary to the declaration then made, and a decree inconsistent with that decree, so that there is no need of a plea for the purpose of identifying the parties, and the subject matter of the second suit as being the same with that of the former, the objection may be taken by demurrer.

Cause removed from the Court of Equity of Craven County.

The bill professes to state the pleadings, proceedings and decree in a suit brought in the Court of Equity, by the present defendant, Hall, as executor of Alexander Carter, against the present plaintiff, as administrator 6f James P. Davis, which was tried in this Court, as reported in 3 Jones’ Eq. 413. It sets forth a declaration in the decree, that the funds with which the slaves were purchased by his intestate, belonged to Carter, and were held by the intestate as Carter’s agent, and that his executor, therefore, had an equity to follow the funds, and to have the slaves that were purchased; and then a decree thereon that the defendant in that suit should deliver the slaves to Hall, and convey them to him as the executor of Carter. It further states that the slaves were accordingly delivered and conveyed; and that, afterwards, upon certain proceedings by the legatees of Carter against Hall, a receiver of the estate of Carter, has been appointed, and has the slaves in possession.

The bill then states that the ground of the decree was, that Carter was the entire owner of the debts for which the intestate took the negroes, and, therefore, that the intestate held the whole of them in trust for Carter. But it alleges further, that, in fact, Carter was not thus the owner, but that when he employed the intestate Davis, as his agent to collect the debts, it was known that they were doubtful, and that the collection would be difficult, and for that reason it was agreed between Carter and Davis, that the latter should have one half of all the debts collected by him by wray of compensation for his services; so that, in truth, but one half of the fund belonged to Carter, and the other half belonged to the intestate, Davis, and by consequence, the intestate of the present plaintiff held but one half of the slaves in trust for Carter or his executor, and ought to have been allowed to keep the other half of them as the estate of the plaintiff’s intestate. The bill further states, that the original slaves were a woman and two children, and that they have increased to the number of ten or more, and that their maintenance was troublesome and expensive, and ought to be reasonably compensated.

The bill is filed against Hall, the executor, and the other persons who claim the slaves under Carter’s will, and the prayer is, that the negroes may now be divided, so as to have a moiety allotted to the plaintiff, and for an account of the profits and expenses of the slaves 'and a decree for the payment of any balance that may be found due thereon to the plaintiff.

The defendant demurred both as to the discovery and the relief.

J. W. Brycun, for the plaintiff.

Dormell and Oreen, for the defendant.

Rukfin, J.

This is not a bill of review; not alleging any error of law or fact in the decree. Nor does the bill allege any fraud in obtaining the decree, nor otherwise impeach it except in the single particular, that, the allegation in the former bill, that the fund with which the slaves were purchased belonged entirely to Carter, and the consequence deduced therefrom, that, in the view of this Court, Carter was entitled to all the slaves. The bill states, that the present plaintiff put in his answer in the former suit, but it does not profess to set forth either the tenor or substance of the answer in reference to a denial or admission of Carter’s claim to the money or the slaves, nor whether it set up the agreement, now alleged, in respect to an equal division of the funds collected, nor whether the slaves were wholly or in part the intestate’s. No reason, indeed, is given, why the question now made was not presented in the former suit, nor any allegation that it was not made and proofs taken on it. The point was plainly in issue in that cause, whether the answer made it directly or not; for it was involved in the allegation of Carter’s ownership of the fund, and evidence that a part of the fund belonged to Davis, would have answered Carter’s claim pro tanto. As that is the case, the decree then made, and standing unreversed, concludes the rights of the parties to that cause, and those claiming under them, as to all the matters found or decreed in that cause. For litigation would be interminable, if after a decree in a cairse founded on the allegations and proofs in that cause the party could, upon an original bill, obtain a decree on the same mattefln opposition to the first decree, simply upon the ground, that the titles of the parties were different from what they were before declared — at the same time, not imputing any undue practices in obtaining the decree. The Court cannot be thus called on to pronounce opposing decrees upon the very same subject matter. Upon this point, the Court entertains no doubt. There has been some hesitation upon the question, whether a demurrer was the proper mode of raising the point, as it is usual to plead a decree in bar to a second suit for the same thing. But here, the bill itself sets forth the substance of the pleadings in the first suit and the decree given in it, and prays a discovery of facts contrary to the declaration then made, and a decree inconsistent with that decree. So, there is no need of a plea for the purpose of identifying the parties and the subject-matter of this suit as the same as those in the former. There is nothing left, then, but the naked question of law, whether the same parties can litigate the same matter over and over again ; and that question arises as well on the demurrer as it would have done on a plea. Demurrer sustained and bill dismissed.

Pee Cueiam, Decree accordingly.