First National Bank of Spring Hope v. Mitchell

Clarkson, J. In the consent judgment of 31 October, 1925, signed by J. N. Sills, C. S. C., it was expressly agreed: “That in order to make assets- to pay the indebtedness of the estate of the said S. 0. Edwards, it is necessary that the first tract be sold,” etc. The judgment of 12 December, 1925, which says: “To pay the proceeds of sale to the plaintiff to the extent of the plaintiff’s indebtedness as alleged in the complaint, in satisfaction of the plaintiff’s alleged equitable lien upon the property sold,” is contrary to the plain language of the consent judgment. Walker, J., in Massey v. Barbee, 138 N. C., p. 88, said: “The rights of the parties must be determined solely by the judgment to which they have assented. 'The judgment, or as it is termed the decree, is by consent the act of the parties rather than of the court, and it can only be modified or changed by the same concurring agencies that first gave it form, and whatever has been legitimately and in good faith done in carrying out its provisions must remain undisturbed.’ Vaughan v. Gooch, 92 N. C., 524. And in Edney v. Edney, 81 N. C., 1, Dillard, J., says for the Court: 'A decree by consent as such must stand and operate as an entirety or be vacated altogether, unless the parties by a like consent shall agree upon and incorporate into it an alteration or modification. If a clause be stricken out against the will of a party, then it is no longer a consent decree, nor is it a decree of the court, for the court never made it.’ The law will not even inquire into the reason for making a decree, it being considered in' truth the decree of the parties, though it be also the decree of the court, and their will stands as a sufficient reason for it. Wilcox v. Wilcox, 36 N. C., 36. It must therefore be interpreted as they have written it and not otherwise.” It is well settled in this jurisdiction: If parties have the authority, a consent judgment cannot be changed, altered or set aside without the consent of the parties to it. The judgment, being by consent, is to be construed as any other contract of the parties. It constitutes the agreement made between the parties and a matter of record by the court, at their request. The judgment, being a contract, can only be set aside on the ground of fraud or mutual mistake. Massey v. Barbee, supra; Deaver v. Jones, 114 N. C., 650; Lynch v. Loftin, 153 N. C., *194 270; Bank v. McEwen, 160 N. C., 414; Gardiner v. May, 172 N. C., 192; In re Chisholm, 176 N. C., 211; Morris v. Patterson, 180 N. C., 484; Walker v. Walker, 185 N. C., 380; Distributing Co. v. Carraway, 189 N. C., 423; Smith v. Smith, 190 N. C., 764; Coburn v. Comrs., ante, 68. No shadow of fraud or mutual mistake is suggested by the record. Florence Edwards sold the land as commissioner. She is also adminis-tratrix of the estate of S. 0. Edwards. After the report is confirmed, deed made and purchase money collected, she must make her report (C. S., 765), and the balance in her hands she must account for as administratrix. According to the consent judgment, the land was sold “in order to make assets to pay the indebtedness of the estate of S. C. Edwards.” This being the agreement, the fund going into her hands as administratrix must be paid to creditors in accordance with O. S., 93, providing the order of payment of debts of a decedent. In the judgment of the court below, there was Error.