Cox v. Boyden

Walker, J., after stating tbe case: Tbe defendant excepts to tbe judgment upon tbe grounds tbat sbe was deprived of tbe benefit of our decision in tbis case at a former term (167 N. 0., 320), and tbat tbe presiding judge did not consider tbe fact tbat tbe judgment of August Term, 1913/ reversed tbat decision. We do not perceive bow either 'objection is possibly tenable or bas any merits. Judge Adams gave her tbe full benefit of oxir former decision, by wbicb sbe was only entitled to bave it ascertained by tbe Superior Court wbetber sbe bad in fact assented to tbe judgment rendered by Judge Lyon. It was alleged tbat sbe bad waived tbe objection to Judge Lyons judgment, which objection was tbat sbe bad not consented thereto. Judge Cline investigated this matter after our opinion bad been certified down, and found tbat sbe bad waived all objection to tbe judgment by withdrawing ber motion to set it aside and agreeing expressly tbat Judge Lyon's judgment rendered in December, 1911, should be declared valid and binding upon ber and all other parties, and also tbe other judgments signed subsequent thereto. Tbat tbis was done when sbe was personally present in court and represented by counsel, by a paper-writing signed and acknowledged by ber, and it was thereupon declared and decreed by tbe court without any objection, but with ber consent, tbat tbe judgment signed by Judge Lyon, as well as tbat afterwards signed by Judge Cooke, and all subsequent judgments rendered and all orders made in tbis cause should be likewise binding on all tbe parties. From tbis judgment no exceptions were taken or appeal entered. After tbis was done, C. Y. S. Boyden, at October Term, 1916, made tbis motion before Judge Stacy to set aside tbe judgment of Judge Cline upon tbe ground tbat sbe did not assent thereto, and that tbe paper-writing purporting to give ber consent to it was obtained by coercion, intimidation and duress. Upon a full and exceedingly fair bearing, Judge Adams bas decided tbis motion against ber, after considering, all tbe facts, and we concur with him tbat both tbe judgment of Judge Lyon and tbat of Judge Cline are valid. Tbat sbe waived all objection to the Lyon judgment, and tbat tbere was no duress or undue influence brought to bear upon ber in order to secure ber consent to tbe Cline judgment, but tbe same was freely and voluntarily given without any fear or compulsion. An option or choice between two fair alternative proposals may bave been mistaken for coercion, but we do not so regard it. There was no advantage -taken of ber, but sbe was left to exercise her judgment and discretion without any dictation, but at ber own free will and pleasure. Sbe bas been treated with perfect fairness and consideration [373] and must abide tbe result, as sbe bad no ground for relief in law or equity. As tbe judge bas found tbe facts, we are bound by bis findings, as we have often beld, there being evidence wbicb supports tbem. Matthews v. Fry, 143 N. C., 384; Harris v. Smith, 144 N. C., 439; Williamson v. Bitting, 159 N. C., 321; Drainage District v. Parks, 170 N. C., 435; In re Inheritance Tax, 172 N. C., 170. Tbe question is essentially one of fact, and therefore bas been substantially closed by tbe judge’s findings. Meadows v. Wharton, 147 N. C., 180; Perry v. Perry, ibid., 367. All of tbe objections must be overruled. Affirmed.