Opinion · Supreme Court of North Carolina

Dixon v. . Warters

53 N.C. 449

Type
Opinion
Court
Supreme Court of North Carolina
Jurisdiction
North Carolina
Date
1862-06-05
Topic
general

Manly, J.-, It will be seen by reference to the case trans *451 mitted to this Court, and to the papers therein referred to, that a controversy in relation to the division of the estate of Benajah Dixon arose among the legatees, which was settled by a bill in equity. To this bill, both the plaintiff and defendant were parties as legatees. The slave, in question, had been a part of the estate of the said Benajah, and was decreed, upon the final hearing of the bill, to belong to the plaintiff. The parties are unquestionably estopped by the decree. ' The rights of property, as declared under it, are conclusive upon them, until it is reversed; “ res adgudicata est, et interest reiptiblicos utjmis sit litiumP .

Citator

UpLaw has not yet analyzed Dixon v. . Warters. The absence of a flag is not a finding that it is good law.

Cited by
3 opinions
DIXONv. WARTERS,53 N.C. 449(1862)
RICHARD DIXON v. JAMES R. WARTERS.
Supreme Court of North Carolina
(June Term, 1862.)
A report by a commissioner, in equity, dividing slaves among tenants in common, followed by a decree confirming the same, passes the right of property from the date of the report, and will enable a party acquiring such right to maintaintroverfor a conversion between the date of such report and the final decree.Held further, that all the parties to a suit for the partition of property are estopped to deny the right of their fellow takers under such decree.
TROVER for the conversion of a female slave, tried before (450)Osborne, J., at Spring Term, 1861, of GREENE.

Benajah Dixon, by his last will and testament, gave all his property to his wife, Mary, to divide among his children, and it is admitted that the slave in question was a part of that property. Mary, the widow, under the provision of the will above mentioned, divided the estate, consisting of slaves, money, etc., among the several children of the said Benajah, under which division the slave in question was, by deed, assigned to the defendant's wife; but after Mrs. Dixon's death a bill in equity was filed by Robert Dixon and others, children of the said Benajah, against the defendant and his wife, who was one of the said children, and other children of the same, to set aside the division that had been made by Mrs. Dixon in her lifetime, on the ground that it was unequal between the children. The defendant and his wife were regularly made parties to this suit. Under an order of the court commissioners were appointed to divide the said property, and it was ordered that the slaves should all be brought forward for that purpose. This was done, and the slave in question in the new apportionment was assigned to the plaintiff. The report of the commissioners was made to the court and confirmed. After the apportionment was made, but before the term of the court at which the report was confirmed, the defendant sold the slave for the purpose of defeating the plaintiff's claim.

There was evidence of a demand and refusal. The court was of opinion, and instructed the jury, that the defendant was estopped by the proceedings in the court of equity, and that on the testimony offered the plaintiff was entitled to recover. Defendant's counsel excepted.
No counsel for plaintiff.J. W. Bryan and McRae for defendant.
MANLY, J.
It will be seen by reference to the case transmitted to this Court, and to the papers therein referred to, that a controversy in relation to the division of the estate of Benajah Dixon (451) arose among the legatees which was settled by a bill in equity. To this bill both the plaintiff and defendant were parties as legatees.Page 344The slave in question had been a part of the estate of the said Benajah, and was decreed, upon the final hearing of the bill, to belong to the plaintiff. The parties are unquestionably estopped by the decree. The rights of property as declared under it are conclusive upon them until it is reversed;"res adjudicata est, et interest reipublicae ut finis sitlitium."

We do not now enter into any examination of the justice and propriety of the proceedings an decree in equity. These cannot be inquired into in this action as upon a bill of review.

The other point raised by the case is whether the action was sustained by proper proof of a conversion. It seems after the division of the slaves was made by the commissioners under the decree, and after the same was reported to the court, but before the confirmation thereof, the defendant refused to deliver up the slave upon demand, and with a view to defeat the plaintiff's claim sold her. This was unquestionably a conversion as against him who had the right of property, and the consequent right of possession at the time, and the question resolves itself into this, Was the plaintiff vested with these rights? We think he was.

Where a decree or judgment of court is rendered declaring rights of property in tenants in common of things capable of division, and partition is ordered, made, and reported, an inchoate right of property is raised, which the subsequent judgment of confirmation perfects. In such case the title has relation back to the division, and starts from that time, in like manner as the right of property in an administrator is held to relate back to the death of the intestate, for the more complete protection of estates. There is

PER CURIAM. No error.Cited: Branch v. Goddin,60 N.C. 496;Carter v. White,131 N.C. 17;Weston v. Lumber Co.,162 N.C. 193.

(452)