election doctrine in North Carolina

2012Dismiss 29–30.) {107} “The ‘whole doctrine of election [of remedies] is based on the theory that there are inconsistent rights or remedies of which a party may avail himself, and a choice of one is held to be an election not to pursue the other.’” Richardson v. Richardson, 261 N.C. 521, 530 , 135 S.E.2d 532, 539 (1964) (quoting Machine Co. v. Owings, 140 N.C. 503 , 53 S.E. 345 (1906)). {108} However, this doctrine does not apply to pleadings, as the Rules of Civil Procedure allow parties to plead in the alternative.

2012Dismiss 29–30.) {107} “The ‘whole doctrine of election [of remedies] is based on the theory that there are inconsistent rights or remedies of which a party may avail himself, and a choice of one is held to be an election not to pursue the other.’” Richardson v. Richardson, 261 N.C. 521, 530 , 135 S.E.2d 532, 539 (1964) (quoting Machine Co. v. Owings, 140 N.C. 503 , 53 S.E. 345 (1906)). {108} However, this doctrine does not apply to pleadings, as the Rules of Civil Procedure allow parties to plead in the alternative.

1964In Lamb v. Lamb, 226 N.C. 662, 665 , 40 S.E. 2d 29 , Seawell, J., in accord with prior cited cases, states: “The doctrine of election, as applied to wills, is based on the principle that a person cannot take benefits under the will and at the same time reject its adverse or onerous provisions; cannot, at the same time, hold under the will and against it.

1964In Lamb v. Lamb, 226 N.C. 662, 665 , 40 S.E. 2d 29 , Seawell, J., in accord with prior cited cases, states: “The doctrine of election, as applied to wills, is based on the principle that a person cannot take benefits under the will and at the same time reject its adverse or onerous provisions; cannot, at the same time, hold under the will and against it.

2022App. at 88 , 557 S.E.2d at 181 , but also the doctrine of election, which “prevent[s] double redress for a single wrong[,]” Whitacre P’ship, 358 N.C. at 20 , 591 S.E.2d at 883 . ¶ 42 Four days after Mr. Snow was arrested for allegedly violating the conditions of his pre-trial release, when Defendant caused a Surrender Form to be filed in Rockingham County Superior Court on 29 September 2017, Plaintiffs had a decision to make.

2022App. at 88 , 557 S.E.2d at 181 , but also the doctrine of election, which “prevent[s] double redress for a single wrong[,]” Whitacre P’ship, 358 N.C. at 20 , 591 S.E.2d at 883 . ¶ 42 Four days after Mr. Snow was arrested for allegedly violating the conditions of his pre-trial release, when Defendant caused a Surrender Form to be filed in Rockingham County Superior Court on 29 September 2017, Plaintiffs had a decision to make.

2022App. at 88 , 557 S.E.2d at 181 , but also the doctrine of election, which “prevent[s] double redress for a single wrong[,]” Whitacre P’ship, 358 N.C. at 20 , 591 S.E.2d at 883 . ¶ 42 Four days after Mr. Snow was arrested for allegedly violating the conditions of his pre-trial release, when Defendant caused a Surrender Form to be filed in Rockingham County Superior Court on 29 September 2017, Plaintiffs had a decision to make.

2022App. at 88 , 557 S.E.2d at 181 , but also the doctrine of election, which “prevent[s] double redress for a single wrong[,]” Whitacre P’ship, 358 N.C. at 20 , 591 S.E.2d at 883 . ¶ 42 Four days after Mr. Snow was arrested for allegedly violating the conditions of his pre-trial release, when Defendant caused a Surrender Form to be filed in Rockingham County Superior Court on 29 September 2017, Plaintiffs had a decision to make.

1957Illustrative are Hutchins v. Davis, 230 N.C. 67 , 52 S.E.2d 210 ; Parker v. White, 235 N.C. 680 , 71 S.E.2d 122 ; Benton v. Alexander, 224 N.C. 800 , 32 S.E.2d 584 , 156 A.L.R. 814 ; Macbeth-Evans Glass Co. v. General Electric, 6 Cir., 246 F. 695 .

1957Illustrative are Hutchins v. Davis, 230 N.C. 67 , 52 S.E.2d 210 ; Parker v. White, 235 N.C. 680 , 71 S.E.2d 122 ; Benton v. Alexander, 224 N.C. 800 , 32 S.E.2d 584 , 156 A.L.R. 814 ; Macbeth-Evans Glass Co. v. General Electric, 6 Cir., 246 F. 695 .

1945Bispbam Eq., 6th Ed., p. 413, sec. 295.” Elmore v. Byrd, 180 N. O., 120, 122— “Tbe doctrine of election, as applied to tbe law of wills, simply means tbat one wbo takes under a will must conform to all of its legal provisions.” McOehee v. McGehee, 189 N. C., 558, 560 , 127 S. E., 684 .

1945Bispbam Eq., 6th Ed., p. 413, sec. 295.” Elmore v. Byrd, 180 N. O., 120, 122— “Tbe doctrine of election, as applied to tbe law of wills, simply means tbat one wbo takes under a will must conform to all of its legal provisions.” McOehee v. McGehee, 189 N. C., 558, 560 , 127 S. E., 684 .

1933Harrison v. Battle, 16 N. C., 537 .

1923Harrison v. Battle, 16 N. C., 537 .

2019The majority's reliance on the State's election rule, as described in State v. Jones , underscores the majority's mistaken view of the procedural posture of this case. 317 N.C. 487 , 346 S.E.2d 657 (1986).

2019The majority's reliance on the State's election rule, as described in State v. Jones , underscores the majority's mistaken view of the procedural posture of this case. 317 N.C. 487 , 346 S.E.2d 657 (1986).

2018Hickey , 317 N.C. at 446 , 346 S.E.2d at 652 .

2018Hickey , 317 N.C. at 446 , 346 S.E.2d at 652 .

2018Owners Ass’n, Inc., 234 N.C.

2005As we later noted in State v. Speckman, 326 N.C. 576 , 391 S.E.2d 165 (1990), since Griffin was decided, the General Assembly has abrogated the election requirement as applied in that case.

2005As we later noted in State v. Speckman, 326 N.C. 576 , 391 S.E.2d 165 (1990), since Griffin was decided, the General Assembly has abrogated the election requirement as applied in that case.

2004Furthermore, because it is “based upon an inconsistency of position rather than a selection of means of enforcing a right,” Eads *21 Hide & Wool Co., 252 F.2d at 84 , judicial estoppel has a much broader scope of application than the doctrine of election.

2004See, e.g., United States v. Carrero, 140 F.3d 327, 330 (1st Cir. 1998) (referring to judicial estoppel and election of remedies as “companion doctrines”); Butcher v. Cessna Aircraft Co., 850 F.2d 247, 248 (5th Cir. 1988), cert. denied, 489 U.S. 1067 , 103 L.

2004See, e.g., United States v. Carrero, 140 F.3d 327, 330 (1st Cir. 1998) (referring to judicial estoppel and election of remedies as “companion doctrines”); Butcher v. Cessna Aircraft Co., 850 F.2d 247, 248 (5th Cir. 1988), cert. denied, 489 U.S. 1067 , 103 L.

1997As this Court explained in Wirth v. Bracey: *109 “The decisions generally are to the effect that in an action ex delicto, where the doctrine of respondeat superior is, or may be, invoked, the injured party may sue the servant alone or the master alone, or may bring a single action against both.” Bullock v. Crouch, 243 N.C. 40, 42 , 89 S.E.2d 749 [, 751 (1955)].

1997As this Court explained in Wirth v. Bracey: *109 “The decisions generally are to the effect that in an action ex delicto, where the doctrine of respondeat superior is, or may be, invoked, the injured party may sue the servant alone or the master alone, or may bring a single action against both.” Bullock v. Crouch, 243 N.C. 40, 42 , 89 S.E.2d 749 [, 751 (1955)].

1982State v. Johnston, 39 N.C.

1979Whichever theory of estoppel that plaintiffs rely upon, either estoppel by recital in a deed, estoppel by acceptance of benefits or the equitable doctrine of election, the applicable principle is *466 the same: that “it would offend every principle of equity and good morals to permit [a party to a transaction] to enjoy its benefits and at the same time deny its terms and qualifications.” Fort v. Allen, 110 N.C. at 192 , 14 S.E. at 686 .

1979Whichever theory of estoppel that plaintiffs rely upon, either estoppel by recital in a deed, estoppel by acceptance of benefits or the equitable doctrine of election, the applicable principle is *466 the same: that “it would offend every principle of equity and good morals to permit [a party to a transaction] to enjoy its benefits and at the same time deny its terms and qualifications.” Fort v. Allen, 110 N.C. at 192 , 14 S.E. at 686 .

1970J., said for the Court, in Wachovia Bank & Trust Co. v. Burrus, 230 N.C. 592 , 55 S.E.2d 183 , "[W]here the devisor purports to devise property which belongs to the beneficiary, giving it to another, and also devises property of his own to the beneficiary, such beneficiary must make a choice between retaining his own property, which has been given to another, or take the property which has been given him under the terms of the will." This doctrine of election does not apply, however, unless the intent of the testator to put the beneficiary to an election clearly appears from the terms of the w

1970J., said for the Court, in Wachovia Bank & Trust Co. v. Burrus, 230 N.C. 592 , 55 S.E.2d 183 , "[W]here the devisor purports to devise property which belongs to the beneficiary, giving it to another, and also devises property of his own to the beneficiary, such beneficiary must make a choice between retaining his own property, which has been given to another, or take the property which has been given him under the terms of the will." This doctrine of election does not apply, however, unless the intent of the testator to put the beneficiary to an election clearly appears from the terms of the w

1970Burch v. Sutton, 266 N.C. 333 , 145 S.E.2d 849 ; Lamb v. Lamb, 226 N.C. 662 , 40 S.E.2d 29 .

1970Burch v. Sutton, 266 N.C. 333 , 145 S.E.2d 849 ; Lamb v. Lamb, 226 N.C. 662 , 40 S.E.2d 29 .

1964In this case the trial court held that plaintiff recover of the defendant the amounts due under the contract, and this Court on appeal affirmed. *530 The Court said in Surratt v. Insurance Agency, 244 N.C. 121 , 93 S.E. 2d 72 : “The 'whole doctrine of election [of remedies] is based on the theory that there are inconsistent rights or remedies of which a party may avail himself, and a choice of one is held to be an election not to pursue the other.’ But ‘the principle does not apply to co-existing and consistent remedies.’ Machine Co., v. Owings, 140 N.C. 503 , 53 S.E. 345 .” “To make them inco

1964In this case the trial court held that plaintiff recover of the defendant the amounts due under the contract, and this Court on appeal affirmed. *530 The Court said in Surratt v. Insurance Agency, 244 N.C. 121 , 93 S.E. 2d 72 : “The 'whole doctrine of election [of remedies] is based on the theory that there are inconsistent rights or remedies of which a party may avail himself, and a choice of one is held to be an election not to pursue the other.’ But ‘the principle does not apply to co-existing and consistent remedies.’ Machine Co., v. Owings, 140 N.C. 503 , 53 S.E. 345 .” “To make them inco

1957Illustrative are Hutchins v. Davis, 230 N.C. 67 , 52 S.E.2d 210 ; Parker v. White, 235 N.C. 680 , 71 S.E.2d 122 ; Benton v. Alexander, 224 N.C. 800 , 32 S.E.2d 584 , 156 A.L.R. 814 ; Macbeth-Evans Glass Co. v. General Electric, 6 Cir., 246 F. 695 .

1957Illustrative are Hutchins v. Davis, 230 N.C. 67 , 52 S.E.2d 210 ; Parker v. White, 235 N.C. 680 , 71 S.E.2d 122 ; Benton v. Alexander, 224 N.C. 800 , 32 S.E.2d 584 , 156 A.L.R. 814 ; Macbeth-Evans Glass Co. v. General Electric, 6 Cir., 246 F. 695 .