Ledford v. Ledford
| Decision Date | 20 October 1948 |
| Docket Number | 310 |
| Parties | LEDFORD v. LEDFORD et al. |
| Court | North Carolina Supreme Court |
Proceeding for the allotment of dower to petitioner as widow of J. F. Ledford, deceased, she having dissented from his last will and testament,--heard upon her motion in the cause to set aside a judgment entered in proceeding, on October 27, 1947, signed by consent of her attorney, Peyton McSwain, by the terms of which it appears that the parties agreed upon a settlement and compromise of their differences,--whereby petitioner agreed to accept the sum of $15,000 in cash in settlement of all her rights of dower, and to distributive share in the personalty, in and to the estate of her deceased husband, J. F. Ledford, and to execute a deed releasing and relinquishing to executors and heirs at law and devisees of J. F. Ledford all her right, title and interest in and to his estate.
The grounds, upon which the motion to set aside the judgment is based, in general, are these: That the judgment (1) is void in that the petitioner did not consent thereto; (2) is voidable and irregular in that it was entered contrary to the course and practice of the court; and (3) is inequitable, unfair, a gross injustice, and totally inconsistent with the established and admitted rights of petitioner.
The court, upon consideration of the motion, affidavits, and argument of counsel for petitioner, found facts substantially these: That negotiations between attorneys for the parties extending over a substantial period of time resulted in an offer by the heirs to pay to petitioner the sum of $15,000 in settlement of her claim to dower and of her distributive share in the estate; that the offer was discussed by petitioner and her attorney, Peyton McSwain, and after several days consideration her said attorney signed the consent judgment, and that on the following day she executed a deed which recites a compromise in effect in keeping with the terms of the offer, and received the executors' check for $15,000; that petitioner was fully apprised of her claims being settled for said amount; that there was no fraud or duress produced upon her by defendants, or by her attorney that her said attorney was authorized to sign the consent judgment, and petitioner ratified it by executing the deed and accepting the check.
Whereupon, the court held as a matter of law that petitioner is not entitled to the relief sought, and, therefore, denied the motion to set aside the consent judgment.
Petitioner appeals therefrom to Supreme Court and assigns error.
Womble, Carlyle, Martin & Sandridge, of Winston-Salem, and John H. Small, of Charlotte, for plaintiff-appellant.
Falls & Falls, of Shelby, for defendants-appellees.
The first two grounds upon which petitioner bases her motion in the cause to set aside the consent judgment entered in the present proceeding appear to be predicated upon her contention that she had not authorized her attorney to sign such judgment.
In this connection, 'A judgment entered of record, whether in invitum or by consent, is presumed to be regular, and an attorney who consented to it is presumed to have acted in good faith and to have had the necessary authority from his client, and not to have betrayed his confidence, or to have sacrificed his right. The law does not presume that a wrong has been done. It would greatly impair the integrity of judgments and destroy the faith of the public in them if the principle were different '. Walker, J., in Gardner v. May, 172 N.C. 192, 89 S.E. 955, 957.
Moreover, it is a general rule of law that a judgment entered by the court upon the consent of the parties litigant, being in the nature of a contract to which the court has given its formal approval, cannot be subsequently modified or set aside without the assent of the parties, in the absence of fraud or mutual mistake, or actual absence of consent, and then only by an appropriate...
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