Farmers Bank of Clayton v. McCullers

*443 Stacy, 0. J. It is conceded tbat tbe deeds in question, executed between husband and wife during coverture, which purport to affect or change the real estate of the wife, were not probated as required by O. S., 2515, in that, the officer in each instance failed to certify in his certificate of probate that at the time of its execution and the wife’s privy examination, such contract was “not unreasonable or injurious to her.” This omission renders the deeds void. Capps v. Massey, 199 N. C., 196, 154 S. E., 52; Caldwell v. Blount, 193 N. C., 560, 137 S. E., 578; Garner v. Horner, 191 N. C., 539, 132 S. E., 290; Best v. Utley, 189 N. C., 356, 127 S. E., 337; Whitten v. Peace, 188 N. C., 298, 124 S. E., 571. It may be doubted whether a confession of judgment made, signed, and verified by a wife during coverture in favor of her husband is required to be probated according to the provisions of C. S., 2515. Judgments by confession differ from judgments by consent (Ellis v. Ellis, 193 N. C., 216, 136 S. E., 350), in that the court exercises a certain amount of supervision over their entry and equitable jurisdiction over their subsequent status. Farwell v. Huston, 151 Ill., 239, 37 N. E., 864, 42 A. S. R., 237; 15 R. C. L., 647. The manner and method of their confession and entry are regulated by statute and not by agreement or consent of the parties. Smith v. Smith, 117 N. C., 348, 23 S. E., 270; note, 12 L. R. A., 810; 15 R. C. L., 647; 34 C. J., 97. But without making definite decision on this point, the confession of judgment seems to be void on its face for another reason, hence it would serve no useful purpose to send the case back, even if the reason assigned for vacating it be erroneous. Rankin v. Oates, 183 N. C., 517, 112 S. E., 32. “A new trial will not be granted when the action of the trial judge, even if erroneous, could by no possibility injure the appellant.” Butts v. Screws, 95 N. C., 215. A judgment by confession, without action, may be entered of record, either in term by the judge, or out of term by the clerk, (1) for money due or to become due, or (2) to secure against contingent liability, or (3) for both such debts and liability. C. S., 623; Sharp v. R. R., 106 N. C., 308, 11 S. E., 530. It is essential to the validity of such a judgment, however, that it be confessed and entered of record according to the provisions of the statute, i. e., a statement in writing must be made, signed, and verified by the defendant, setting out the amount for which judgment may be entered, and authorizing the entry of judgment therefor. C. S., 624, subsec. 1. If the confession be for money due or to become due, the statement must contain concisely the facts out of which it arose, and must show that the sum confessed is justly due, or to become due. O. S., 624, subsec. 2. *444 If the confession be to secure against contingent liability, the verified statement must give concisely the facts constituting the liability, and must show that the sum confessed does not exceed the same. C. S., 624, subsec. 3. If the confession be for both such debts and liability, the statement must set forth concisely the facts out of which the debts arose, and must show that the sum confessed therefor is justly due, or to become due, and also state concisely the facts constituting the liability, and must show that the sum confessed therefor does not exceed the same. These are essential matters required by the statute to confer jurisdiction on the court, and to insure validity of the judgment. Smith v. Smith, supra. It is provided by C. S., 625, that the statement or confession may be filed with the clerk of the Superior Court of the county in which the defendant resides, or, if he be a nonresident, of some county in which he has property. The clerk is required to endorse upon it, and enter on his judgment docket, a judgment of the court for the amount confessed, with three dollars costs, together with disbursements. The statement and affidavit, with the judgment endorsed, thenceforth become the judgment roll, upon which execution may issue and be enforced in the same manner as upon judgments in other cases in such courts. Observance of these provisions is also a prerequisite to the validity of the judgment. Sharp v. R. R., supra. The purpose of requiring the facts out of which the debt arises, or which constitute the contingent liability, to be stated concisely, but accurately, is to prevent fraud and to protect the other creditors of the debtor, over whose claims a preference is thereby sought to be given, for, while the judgment is summary, nevertheless, when docketed, it at once becomes a lien upon the defendant’s real estate. As an earnest of the bona tides of the particular debt or liability, the defendant is required to individualize the claim or liability by spreading upon the record the circumstances and transactions out of which it springs so that another debt or liability could not thereafter be substituted in its stead. Davidson v. Alexander, 84 N. C., 621; Clement v. Gerow, 30 Barb. (N. Y.), 325. In some of the eases it is said that the debt or liability should be identified with such certainty and particularity as would aid a conviction for perjury if the statement of it be false, or support a plea of res judicata should a subsequent action be instituted thereon. Davenport v. Leary, 95 N. C., 203. The statement should also give assurance that the consideration underlying the judgment is fair and honest. Sharp v. R. R., supra. A confession of judgment does not of itself import a consideration; hence, for this reason, the statement must show that the sum confessed is justly due, or to become due, or does not exceed the contingent *445 liability. Martin v. Briscoe, 143 N. C., 353, 55 S. E., 782; Bank v. Cotton Mills, 115 N. C., 507, 20 S. E., 765. In the instant case, all tbat the judgment roll discloses, relative to the circumstances out of which the debt arose, is “balance due on account of money advanced . . . from time to time to take care of obligations due ... at banks.” But it is not stated over what period of time these advancements were made, or how much was advanced at any particular time. Nor does it appear that said advancements were not gifts on the part of Dr. McCullers to his wife. Arrington v. Arrington, 114 N. C., 116, 19 S. E., 278; Loyd v. Loyd, 113 N. C., 186, 18 S. E., 200; 30 C. J., 702; 13 R. C. L., 1381. This renders the judgment entered on the confession void as against creditors. Smith v. Smith, supra; 34 C. J., 114 et seq. In Stratton v. Wilson, 170 Ky., 61, 185 S. W., 522, Ann. Cas., 1918B, 917, it was held (as stated in the 11th headnote) : “Where a husband had on a trip abroad given his wife express checks for their expenses amounting to $800, and at another time had sent her $2,000 in a draft, and there is no showing that he intended that she should account therefor, she is entitled to retain the same on his death.” With the deeds and judgment in question void, for the reasons herein stated, the proceeding will be upheld, as the correct result has been reached. No error.