Morris v. Patterson

• Decision Date: 01 December 1920
• Docket Number: 476.
• Citation: 105 S.E. 25,180 N.C. 484
• Parties: MORRIS v. PATTERSON.
• Court: North Carolina Supreme Court

105 S.E. 25

180 N.C. 484

MORRIS v. PATTERSON.

No. 476.

Supreme Court of North Carolina

December 1, 1920

Appeal from Superior Court, Randolph County; Lane, Judge.

Action by Jesse B. Morris against R. D. Patterson. From judgment for plaintiff, defendant appeals. Reversed.

A judgment by consent of the parties themselves is conclusive in the absence of fraud or mutual mistake shown.

At March term, 1918, there was an action pending in the superior court of Randolph brought by Mattie L. Morris against her husband, J. B. Morris, the plaintiff in this case, asking for a divorce from bed and board and to be allowed to live separate and apart from her husband. At that term a consent judgment was entered, and signed by Jones, J., reciting that the jury had been impaneled, and both parties being present and represented by counsel, and it being shown to him that that they had arranged and settled their controversy, and it being shown to the court also that the parties were then, and had been for some time, living separate from each other, and it being further shown to the court that the parties have five living children, "now, by consent in open court, it is ordered, decreed, and adjudged that the plaintiff have and hold for the term of her natural life, the tract of land purchased by the defendant from G. F. York, described as follows: (Description of land.) And upon the expiration of the life estate the aforedescribed land is to become the property of the children of the defendant Jesse B. Morris by his wife, Mattie L. Morris, and of the issue of such as may then be dead." There was a further provision that the plaintiff in that action (the mother) was to "have the care and custody of the three youngest children, and the defendant (the father) the care and custody of the two older children; and that each of the parties should be permitted to visit at will the children left in the custody of the other"; that the parties to that action "are allowed to live separate in the future and each party releases and quitclaims to the other all interests in the property of the other by reason of the marital relation; that the defendant may have the right to remove from the tracts allotted to the plaintiff the growing crop and all personal property which he has on the said premises; that each party shall pay one half of the costs."

On April 15, 1920, said Jesse B. Morris entered into a contract with R. D. Patterson to convey to him, upon payment of $5,500, a warranty title to certain tracts of land described in said contract, which includes the land settled as aforesaid upon the plaintiff's wife and children as recited in the aforesaid consent judgment, and tendered the defendant the deed therefor, who refused to accept the same upon the ground that by the consent judgment of March term, 1908, certain parts of said land had by final decree been conveyed by the plaintiff to his wife and children, and is still vested in them.

Lane J., presiding at said September term, held that the consent judgment was null and void, and that the plaintiff could convey a free and unincumbered title to said land and rendered judgment in the said sum of $5,500 and interest and costs. Appeal by defendant.

Dan B King, of Sanford, for appellant.

Seawell & Milliken, of Sanford, for appellee.

CLARK C.J.

A consent judgment is simply a contract of record, entered with the approval of the court. In Bank v. Commrs, 119 N.C. 226, 25 S.E. 969 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, 21 S.E. 198, the court held that our statute, now C. S. 2529, recognized as valid "a deed of separation between husband and wife and 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, 12 S.E. 57.

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 for 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.

This 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 his 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 C. 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 case 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, 89 S.E. 956, 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; Kerchner v. McEachern, 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, 79 S.E. 627, Ann. Cas. 1915B, 244, it is said:

"A judgment entered by the

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