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land one or two years and that in 1881 plaintiff's father had farmed an acre or two of the land in controversy. This was insufficient. Hamilton v. Icard, 114 N. C., 532; Shaffer v. Gaynor, 117 N. C., 15; McLean v. Smith, 106 N. C., 172.

The plaintiff claimed under a deed executed to him by John Prevatt in 1894. The court instructed the jury that the sheriff's deed to plaintiff's grantor, John Prevatt, in 1856 was some evidence of adverse possession in those under whom plaintiff claims. This was error, for there was no evidence of possession thereunder beyond that above stated and there is no presumption of law that the purchaser took possession. It was also error to refuse the motion to non-suit plaintiff under the statute.

In refusing the motion to non-suit there was error for which, under the uniform practice of this court, there must be a new trial. On such new trial, if the plaintiff can "mend his lick" by additional and sufficient evidence, well and good. He has not lost the land. If he can not offer additional evidence, this, though a new trial in form, will be virtually a finality against him.

As the effect of Chapter 109, Laws 1897, as amended by Chapter 131, Laws 1899, and Chapter 594, Laws, 1901, is often presented, it may be well to repeat what we have said in Means v. Railroad, 126 N. C, at p. 129 (which was cited and approved in Parlier v. Railroad, 129 N. C., 262). The rule stands now just as it did before the passage of Chap. 109, Laws 1897, and the amendment of 1899, except that under this legislation it is discretionary with the defendant whether he will introduce evidence after the motion to dismiss, or not; while, before these Acts, it was discretionary with the court whether it would allow the defendant to introduce evidence after resting his case and making the motion." This is the sole change made by the statute and that change can not affect the settled practice that when a motion to non-suit (or a demurrer


to evidence) is erroneously refused, a new trial has always been ordered. State v. Adams, 115 N. C., at p. 784; State v. Rhodes, 112 N. C., at p. 858, are exactly in point, besides numerous cases in which it is taken as settled practice. The verdict and judgment being set aside a trial de novo is neces


Still less does the statute affect the rights of the plaintiff against whom a non-suit is ordered, for the statute was directed solely to the enlargement of the rights of the defendant, who formerly was cut off from introducing evidence in his defence after the overruling of his demurrer to the evidence, unless so allowed in the discretion of the court. State v. Adams, 115 N. C., 775; State v. Hagan, 131 N. C., 803. By the statute this is made discretionary with the defendant, who, in addition, if his exception at the close of all the evidence is overruled, can have that exception reviewed on appeal notwithstanding the verdict of the jury is against him.

As to the plaintiff, from time immemorial he has had the right to take a non-suit at any time before verdict. The statute was not intended to deprive him of this right by a motion at the close of the evidence. When a motion to nonsuit under the statute is made, the plaintiff's only mode of ascertaining that the court is of opinion that his evidence is insufficient is by the judgment allowing the motion. The statute authorizes an involuntary non-suit, a judgment "as of non-suit," but it is none the less a non-suit in all its features. An action can only be dismissed for want of jurisdiction or failure of complaint to state a cause of action (Clark's Code, 3d edition, p. 923), but never for want of evidence. In the latter case, as in all other cases of non-suit, he can bring a new action within one year thereafter, if so advised. The Code, Secs. 166 and 142; Keener v. Goodson, 89 N. C., 273. The Legislature terms it a "judgment as in case of non-suit," Sec. 1, Ch. 109, Laws 1897, and this language is not changed by


either of the amendatory acts. A new action may be brought in all cases of non-suit. Meekins v. Railroad, 131 N. C., 1. An action dismissed in the nature of a non-suit "does not deprive the plaintiff of bringing a new suit for the same cause of action." Skillington v. Allison, 9 N. C., 347; Long v. Orrell, 35 N. C., 123; Freshwater v. Baker, 52 N. C., 255; Straus v. Beardsley, 79 N. C., 59; Wharton v. Commis sioners, 82 N. C., 11; Halcombe v. Comm'rs, 89 N. C., 346. In this last case it is said "The distinction is between nonaction, a refusal founded upon evidence sufficient to determine the question of right and a decision upon the merits." New Trial.


(Filed March 24, 1903.)

1. DEMURRER-Judgment-Estoppel-Ejectment.

Where a demurrer goes to the merits of an action (here ejectment) judgment sustaining it is conclusive upon the parties, and will bar another action for the same cause.

2. JUDGMENT-Demurrer-Amendment-Ejectment.

Where a final judgment on the merits of a case is rendered on demurrer, the fact that the trial court permits the plaintiff to amend his complaint does not affect the conclusiveness of the judgment.

ACTION by Emory Willoughby against M. A. Stevens, heard by Judge W. S. O'B. Robinson and a jury, at May Term, 1902, of the Superior Court of ROBESON County. From a judgment for the defendant, the plaintiff appealed.

R. E. Lee, for the plaintiff.

McIntyre & Lawrence, and McLean & McLean, for the defendant.


CONNOR, J. This was an action of ejectment, plaintiff claiming title to a tract of land, a description of which is set out in the complaint by metes and bounds, and by way of further description he says: "The said land being a part of a tract containing 640 acres granted by patent to Abram Barnes and surveyed by Robert Edwards, the 5th of November, 1774, and by the said Barnes conveyed by deed to William Hawthorne, then from said Hawthorne to Gilbert Brumble, and from said Brumble to Joel Britt, Sr., and from Joel Britt, Sr., to John Britt."

The defendant denied that the plaintiff was the owner of the land, and for further answer alleged that he was the owner, setting out his claim of title, by which it appeared that he claimed under a deed executed by Joel Britt, Sr., and wife to Enoch Rogers and by mesne conveyances to himself. For further defence he alleges that the plaintiff claims title to said land under the deed of John McN. Britt, dated November 28th, 1899, duly recorded; that the said John McN. Britt instituted on October 9th, 1880, a suit in the Superior Court of Robeson County against the said Joel Britt, Sr., and Enoch Rogers, in which he claimed that he was the owner in fee of the land described in the complaint, claiming title thereto as the only heir at law of John Britt, deceased, to whom, as he alleged, Joel Britt, Sr., conveyed said land by deed dated 19th February, 1862, being the same conveyances referred to in article 1 of the complaint herein, and thereafter in said action, the defendants, Joel Britt and Enoch Rogers, joined issue with the said John McN. Britt upon demurrer to the complaint filed, a copy of said complaint and demurrer being attached to the answer. That upon the issue joined as aforesaid the following judgment was rendered in said Superior Court, at Spring Term, 1882: "This action having been brought to trial upon the complaint and demurrer thereto, before his Honor, W. M. Shipp,


judge presiding, at Spring Term, 1882, of the Superior Court of Robeson County, and it appearing to the court that the defendants are entitled to judgment upon the demurrer, it is now, on motion of French & Norment, counsel for defendants, adjudged that the said demurrer be sustained and the defendants have judgment for costs. Leave to plaintiffs to amend complaint."

That both plaintiff and defendant in this action are privies to plaintiff and defendants in said former action and are estopped by the judgment therein.

His Honor was of the opinion that the plaintiff was estopped by said judgment and rendered judgment for the defendant. Plaintiff appealed.

The only question presented for our consideration is his Honor's judgment in regard to the estoppel. It is not denied that the land in controversy is the same land which was in controversy in the case of John McN. Britt against Joel Britt, or that the plaintiff therein claimed as the heir at law of John Britt, who claimed under the deed from Joel Britt, Sr., or that Joel Britt, Sr., is the identical person under whom the defendant claims in this title.

The plaintiff contends that the judgment rendered by Judge Shipp was not such a judgment as works an estoppel; that it did not pass upon and determine the merits of the controversy. This court has held in the case of Johnson v. Pate, 90 N. C., 334, that a judgment upon a demurrer may be a judgment upon the merits, and its effect is as conclusive as though the facts set forth in the complaint were admitted by the parties or established by evidence submitted to the jury. The plaintiff in the former action set out in full his title, making the deed under which his ancestor claimed a part of his complaint, thus writing into his complaint the deed. The defendants by their demurrer admitted every fact set forth in the complaint and demurred thereto upon

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