#### JOHN STONE, JR., Substituted Plaintiff for MOSES GRIMES, v. AMELIA GUION, CICERO GUION and BUDDY GUION.

(Filed 12 January, 1944.)

1. Ejectment § 15: Execution § 34—

Where plaintiff sued in ejectment three defendants, wife, husband and son, and at the close of the trial plaintiff was nonsuited as to the father and son, and no appeal taken, and on a subsequent trial plaintiff recovered judgment against the wife, and upon issuance of a writ of possession, the wife moved to vacate the writ on the ground that she disclaims title to the property and is living on the land in the home of her husband by reason of her marital rights, an order allowing the motion was proper.

3. Ejectment § 9a—

No person in possession of the premises claiming title thereto prior to, or at the time of, the commencement of the action can be dispossessed unless he was made a party to the suit so as to be bound by the judgment.

3. Husband and Wife § 1—

Neither husband nor wife, without lawful cause, so long as the marital relation exists, can exclude the other from the home they have established by mutual and voluntary choice.

Appeal by plaintiff from *Carr, J.,*at April Term, 1943, of EobesoN.

This action has been before this Court twice previously, *Grimes v. ■Guión,*220 N. C., 676, 18 S. E. (2d), 170, and *Stone, Substituted Plaintiff, v. Guión,*222 N. 0., 548, 23 S. E. (2d), 907.

The action was brought originally against Amelia Guión, Cicero •Guión and Buddy Guión, and the complaint alleged the defendants were in the unlawful and wrongful possession of the land described therein. Amelia Guión filed ail answer and pleaded *sole seizin*of the land in controversy. Cicero Guión, her husband, and Buddy Guión, her son, filed *&*separate answer and denied they were in the unlawful and wrongful possession of said land. At the close of plaintiff’s evidence in the trial below, Cicero and Buddy Guión moved for judgment as of nonsuit as to them. The motion was granted and no appeal was taken from said judgment.

The second appeal involved a review of the trial below, wherein the plaintiff John Stone, Jr., was adjudged the owner and entitled to the immediate possession of the tract of land in controversy and the defend.ant, Amelia Guión, was adjudged to be in the unlawful possession thereof. No error was found in said trial. Thereafter a writ of possession was issued and served on Amelia Guión by the Sheriff of Eobeson County, to eject her from the land and put the plaintiff, Stone, in possession. Amelia Guión moved to vacate the writ of possession on the ground that she disclaimed any further title to the property, in view *832of the Supreme Court’s decision, and that she was now living iñ the home upon the land with her husband by reason of her marital rights. Whereupon, his Honor entered an order allowing defendant’s motion to recall the execution issued against her and concluding therein as a matter of law upon the facts found that the defendant, Amelia Guión, having disclaimed title to the land in controversy, has a lawful right to remain in the home and domicile of her husband, Cicero Guión, situated upon the said land, until such time as the said Cicero Guión voluntarily surrenders the possession thereof or has been ejected therefrom by due-process of law.

The plaintiff appeals from the foregoing order to the Supreme Court and assigns error.

*F. D. IiaclceU and James B. Nance for plaintiff.*

*L. J. Britt and McLean ■& Stacy for defendant.*

DeNNY, J.

The plaintiff contends that Cicero Guión, husband of Amelia Guión, and her son, Buddy Guión, are bound by the judgment herein and may be dispossessed under the writ of possession issued pursuant thereto. This contention is based upon the general rule that “After recovery of a judgment in favor of the plaintiff in an action of ejectment the defendant and all those in privity with him may be dispossessed under the writ of possession issued thereon, and that all persons acquiring possession from and under the defendant during the pendency of the-action are privies within the meaning of the rule. The parties defendant, their families, servants and tenants at sufferance are, of course, bound by the court’s order in ejectment and may be dispossessed.” 18 Am. Jur., see. 142, p. 113. The rule does not apply in the instant case. There is no privy in estate shown on this record to exist between Amelia Guión and her husband, Cicero Guión, or between her and her son, Buddy Guion. *Shew v. Call,*119 N. C., 450, 26 S. E., 33. Quoting further from the above section of Am. Jur.: “While the general rule is, as stated, that the defendant and all those in privity with him and who enter under, and acquire an interest in the premises from or through, him subsequent to the commencement of the action are bound by the judgment therein and are liable to be dispossessed thereunder, the converse of this rule is also equally well settled — namely, that no-person in possession of the premises claiming title thereto prior to, or at the time of, the commencement of the action can be dispossessed unless he was made a party to the suit so as to be bound by the judgment.”

The plaintiff, having alleged, that Amelia Guión, Cicero Guión and Buddy Guión were in the unlawful and wrongful possession of the land *833be sought to recover, tbe burden was upon him to show unlawful and wrongful possession. This he failed to do in so far as Cicero Guión and Buddy Guión were concerned, in the opinion of the trial judge, which failure resulted in a judgment of involuntary nonsuit as to them. When the judgment of nonsuit was entered, the plaintiff did not appeal nor move to make Cicero Guión a party defendant, as the husband of Amelia Guión, but elected to proceed against Amelia Guión alone. Hence, neither Cicero Guión nor Buddy Guión was a party to the action when the final judgment was rendered. Therefore, the plaintiff is not entitled to an execution against Cicero Guión or Buddy Guión under and by virtue of the judgment rendered in this action.

In view of the status of the parties, and the disclaimer of title to the land in controversy by Amelia Guión, we think the ruling of the court below is correct.

On the facts as disclosed on this record, the filing of the disclaimer of title is tantamount to a voluntary dispossession and an ouster of Amelia Guión of all claim of right. A physical eviction of Amelia Guión from the premises would accomplish nothing more, since she has the legal right to live in the home and domicile-of her husband, Cicero Guión, who resides in a house situate on the land in controversy. “Neither husband nor wife, without lawful cause, so long as the marital relation exists, can exclude the other from the home they have established

by mutual and voluntary choice.” 27 Am. Jur., 201; *Kelley v. Kelley,*74 A. L. R., 135, 153 Atl., 314, see Annotation 74 A. L. R., 138, citing *Hancock v. Davis,*179 N. C., 282, 102 S. E., 269, and *Kornegay v. Price,*178 N. C., 441, 100 S. E., 883.

The character of the possession of Cicero Guión and Buddy Guión is not presented for determination on this record.

The judgment of the court below is

Affirmed.