Ejectment — New Trial.
Where, in ejectment, a venire de novo was awarded below because the jury were misled by the instruction "that although the plaintiff at the trial disclaimed title to a part of the land in dispute, the jury might render a general verdict, and the plaintiff would take out his writ of possession at his peril"; Held that the new trial was properly awarded.
SMITH, C. J.
We concur in the action of the court in awarding a new trial, and the sufficiency of the reasons for so doing. Although some doubt was expressed upon the point by RODMAN, J., in Johnson v. Nevill, 65 N.C. 677, an early decision made after the introduction of the new system of pleading under the Code, it has (300) been since settled that a matter put in issue and material to the results is conclusively determined by the verdict and judgment, where land is sought to be recovered, as it would be if the recovery of persona property was the object. Here, both the pleadings and the issue involve the determination of the title and consequent right of possession in the plaintiff, and this distinctly and definitely decided in the verdict. It could not therefore be drawn in question between the parties again by the defendant, and becomes res adjudicata of record.
We refer to some of the many adjudications of this court — Falls v. Gamble, 66 N.C. 455; Isler v. Harrison, 71 N.C. 64; Gay v. Stancell 76 N.C. 369; Yates v. Yates, 81 N.C. 397; Tuttle v. Harrill, 85 N.C. 456.
No error. Affirmed.
Cited: Johnson v. Pate, 90 N.C. 336; Springs v. Schenck, 99 N.C. 556; Bickett v. Nash, 101 N.C. 583; Ferguson v. Wright, 115 N.C. 569; Wyatt v. Mfg. Co., 116 N.C. 283; Turnage v. Joyner, 145 N.C. 83, 84.