Wayne County NcArchives Court.....G. L. Kirby, W.H. Finlayson V. 197
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File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 5, 2009, 9:05 pm

Source: Nc Reports
Written: 197

W.H. Finlayson, Trustee, et al v. G. L. Kirby et al

From Wayne

Spring Term 1897

Practice — Appeal — Parties

Where, in an action to recover land, the defendants pleaded as an estoppel a 
judgment rendered in a proceeding for the settlement of the estate of a 
deceased person under whom all parties claimed and the record shows that some 
of the heirs and distributees interested in such proceeding had died during 
the pendency thereof, and that their heirs had not been made parties to the 
case at bar; Held, that the case will be remanded by this Court, in order that 
all interested persons may be made parites and that the rights and equities of 
all may be disposed of in one final judgment 

Civil action to recover land, tried before Adams, and a jury at Spring Term, 
1897, of Wayne Superior Court. There was a verdict for the defendants and from 
the judgment thereon the plaintiffs appealed. 

Mr. H. G. Camer, for plaintiffs (appellant). 
Messrs. Allen & Dortch and W. C. Monroe, for defendants. 

Faircloth, C. J.: This is an action of ejectment and the title of the land 
described is in question — all parties claiming under Waitman Thompson, Sr., 
who conveyed the land to Finlayson and Hines in trust for his son, Waitman 
Thompson, Jr. The latter and his wife have died leaving no issue of their 
bodies. The plaintiffs allege that Thompson, Jr. had only a life estate and 
that they are now the owners in fee. The defendants claim under Thompson, Jr. 
by the conveyances and allege that he had an estate in fee simple, and that 
they are the owners. They also insist that the plaintiffs are estopped by 
force of a judgment rendered in a proceeding before the Clerk for a settlement 
of the estate of Thompson, Sr., in which proceeding the personalty and realty, 
as advancements, were considered and accounted for, including that now in 
question, to which proceeding all the Thompson heirs were parties. It appears 
from the record before us that, pending said proceeding for settlement, 
several of the Thompson heirs and distributees died intestate and that their 
heirs were never made parties to that proceeding, and they are not parties in 
this action. Their personal representatives only were brought into the 
proceeding for a settlement. In order that the rights and equities of all the 
parties may be disposed of in one final judgment, we have concluded to send 
this case back to the end that all interested persons be made parties, and 
that they may be finally concluded as to both the real and personal estate. We 
think it would not serve any useful purpose to express any opinion on the 
interesting questions argued here, until all interested persons have had an 
opportunity to be heard. 

Remanded 


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