Morris v. . Patterson

Olakk, O. J. A consent judgment is simply a contract of record, entered with the approval of the court. In Bank v. Comrs., 119 N. C., 226, it is held: “Consent judgments are, in effect, merely contracts of parties, acknowledged in open court, and ordered to be recorded. As such, they bind the parties thereto as fully as other judgments,” provided the parties had the authority to make such contract. This has been often affirmed since. The only question for our consideration is the power of the husband and wife to make such contract. In Cram v. Cram, 116 N. C., 294, the Court held that our statute, now C. S., 2529, recognized as valid “a deed of separation between husband and wife, registered in the county in which she resides,” when she is living separate from her husband, quoting Sparks v. Sparks, 94 N. C., 527, though it was further said that the courts did not look with favor upon such contracts, citing Smith v. King, 107 N. C., 276. It follows, therefore, that if the contract between the husband and wife to convey to her a certain tract of land for her support with remainder to her children had been made out of court it would have been, at least, prima facie valid, and in any view, the voluntary conveyance would have been binding on the husband. The action was brought by the wife for divorce from bed and board, and also from separation under C. S., 1667. Such action was without collusion, and was being tried when the parties, both present in person, and also represented by counsel, made known to the court that they had agreed upon a settlement. *487 Tbis agreement did not include any decree for divorce, which, would have been void, but is simply an agreement for separation with a conveyance by the decree, with the consent of the parties, of a certain part of land to Ms wife and children. Such conveyance the husband could have made if there had been no action pending, and in such proceeding the court could, under the authority of O. S., 1667, have caused “the husband to secure so much of his estate for the benefit of his wife and children as may be proper,” and when the court makes such an order granting “alimony by the assignment of real estate, the court has power to issue a writ of possession,” C. S., 1668, and under C. S., 1664, the court had power to adjudge the' custody of the children, as was done in this ease by the consent of the parties. The court, in the former judgment, had jurisdiction of the parties and subject-matter, and the judgment would have been valid except as to the conveyance to the children after the death of the wife, and as to that the husband, in open court, in person and by counsel, assented to the judgment, and did not appeal. It is true that consent cannot confer jurisdiction, but when, as in this case, the court had jurisdiction and the parties had power to consent, the judgment is conclusive. In Gardiner v. May, 172 N. C., 194, Walker, J., says “As to nature and legal effect of consent judgments . . . where parties solemnly consent that a certain judgment be entered on the record, it cannot be changed or altered, or set aside without the consent of the parties to it, unless it appears, upon proper allegation and proof and finding of the court that it was obtained by fraud or mutual mistake, or that consent was not in fact given, which is practically the same thing, the burden being upon the party attacking the judgment to show facts which will entitle them to relief. Edney v. Edney, 81 N. C., 1; Stump v. Long, 84 N. C., 616; McEachern v. Kerchner, 90 N. C., 179; Vaughan v. Gooch, 92 N. C., 527; Lynch v. Loftin, 153 N. C., 270; Simmons v. McCullin, 163 N. C., 409, and Harrison v. Dill, 169 N. C., 542, where the subject is fully considered and the authorities reviewed.” In Stump v. Long, 84 N. C., 616, it was held that “a judgment or order made in a cause by consent of parties, or their attorneys, is binding and cannot be set aside or modified, except upon ground of mistake by both parties or by fraud, and this by civil action and not by motion.”. This case has been often cited and approved, see Anno. Ed. In Vaughan v. Gooch, 92 N. C., 524, it was held: “An order or judgment made by consent cannot be set aside or modified, unless by consent, except for fraud, or mistake of both parties.” See cases therein cited and citations in Anno. Ed. In Simmons v. McCullin, 163 N. C., 414, it is said: “A judgment entered by the court, upon the agreement of the parties, is, to. *488 say tbe least, as conclusive upon them as if judgment were rendered in tbe ordinary course of proceeding's,” citing many cases. A consent judgment will not be set aside upon tbe ground of surprise or excusable neglect, Hairston v. Garwood, 123 N. C., 345. Sucb judgment cannot be impeached collaterally, but only by a direct proceeding for fraud, and where a consent judgment is entered upon a replevin bond in claim and delivery, tbe sureties could not attack .it for fraud by motion, but might proceed by a direct action. McDonald v. McBryde, 117 N. C., 125. A consent judgment can be amended only by consent, and is an exception to tbe rule that judgments may be modified by tbe judge during tbe term at which they are rendered. Deaver v. Jones, 114 N. C., 651, citing 1 Black Judgments, 305, 308, 319; Freeman on Judgments, 111 a; McEachern v. Kerchner, 90 N. C., 179, and many other cases. In 1 R. C. L., 947, it is held that while decrees allowing alimony may be modified by the court from time to time, that this is not so when the alimony embraced in tbe decree is entered by the consent of parties, “for such a modification of the decree would be no less a modification of the contract itself; which is not subject to revocation or modification except by consent of the parties thereto,” citing Pryor v. Pryor (Ark.), 129 Am. St., 102; Henderson v. Henderson (Or.), 48 L. R. A., 766; 13 Anno. Cas., 296, and note. In 15 R. C. L., 645, it was held that a consent judgment was binding upon husband and wife, if consented to by both, citing Bank v. McEwen, 160 N. C., 414; Simmons v. McCullin, 163 N. C., 409. In 1 Black on Judgments, 319, it is said that while “A court has power to vacate and set aside a consent judgment on account of fraud, mutual mistake, or surprise, it cannot alter or correct it, except with the consent of all the parties affected by it,” citing Kerchner v. McEachern, 93 N. C., 447; Stump v. Long, 84 N. C., 616. C. S., 608, provides: “Every judgment in which the transfer of title is so declared shall be regarded as a deed of conveyance, executed in due form and by capable persons.” In Rollins v. Henry, 78 N. C., 350, it was held that “a decree made by consent that the plaintiff will recover the land in controversy had the effect of conveying the legal estate in fee as between the parties,” and was good against third persons in the absence of fraud or collusion. In Holloway v. Durham, 176 N. C., 553, Hoke, J., says that “the defendant insists that this being a judgment by consent, the parties are not confined to the matters in controversy presented in their pleadings, and that the present judgment was intended to be and is an adjustment concluding the parties as to any and all damages that plaintiff, his heirs and assigns, might at any time suffer from the erection and maintenance *489 of defendant’s plant. Tbe decisions in tbis State bave gone very far in approval of tbe principle tbat a judgment by consent is but a contract between tbe parties, put upon tbe record witb tbe sanction and approval of tbe court, and would seem to uphold tbe position tbat sucb a judgment may be entered and given effect as to any matters of wbicb tbe court bas general jurisdiction, and tbis witb or without regard to tbe pleadings. Bank v. McEwen, 160 N. C., 414; Bunn v. Braswell, 139 N. C., 139; Bank v. Comrs., 119 N. C., 214; Vaughan v. Gooch, 92 N. C., 524. Sucb a ruling bas tbe support of well considered authority elsewhere. Fletcher v. Holmes, 25 Ind., 458; Seiler v. Mfg. Co., 50 W. Va., 208, 218; Beach Modern Eq. Pr., sec. 794; 2 Black Judgments, sec. 705; 23 Cyc., 728.” There are some circumstances in wbicb a judgment by consent of counsel will be set aside. Davis v. Bank (Geo.), 46 L. R. A. (N. S.), 750. But these are tbe exceptions. Where tbe parties themselves bave joined in tbe consent, and there is no fraud or mutual mistake shown, tbe judgment is conclusive. There are many and insuperable reasons against treating tbe former judgment of 1908 as a nullity; tbe court bad jurisdiction'of tbe parties and tbe subject-matter; tbe consent was by tbe parties themselves as well as by counsel, and extended only to matters as to wbicb tbe parties could bave agreed out of court; tbe judgment by consent could not be modified except by consent; tbis was not an action to set it aside by fraud or mutual mistake, and no ground for sucb allegation is set out; if there was mutual mistake, then there is tbe long lapse of time; neither tbe wife nor tbe children, who bold title under tbe consent judgment, are made parties to tbis action; and tbe judgment cannot be impeached in tbis collateral proceeding. Tbe judgment was entered witb tbe consent of tbe plaintiff, and is-binding upon him as a conveyance of record of tbe land in a pending suit for alimony, and tbe land was assigned and settled by tbe court upon bis wife and children in compromise of tbat matter witb tbe consent of tbe plaintiff. Any decree in tbis cause would bave been invalid if entered against them, but as tbe Court is of tbe opinion tbat they obtained a valid title by tbe consent judgment of 1908, it is not necessary tbat they should be parties to this action between tbe plaintiff and bis vendee. Eeversed.