Brown v. Owens

Supreme Court of North Carolina

Brown v. Owens

111 S.E.2d 705, 251 N.C. 348, 1959 N.C. LEXIS 604

CourtSupreme Court of North Carolina

DecidedDecember 2, 1959

Docket525

StatusPublished

Cited by5 cases

This text of 111 S.E.2d 705 (Brown v. Owens) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brown v. Owens, 111 S.E.2d 705, 251 N.C. 348, 1959 N.C. LEXIS 604 (N.C. 1959).

Pincite

Opinion

Bobbitt, J.

Plaintiff may not attack by independent action the judgment of November 25, 1957, entered in said separate civil action, on the ground that its validity is dependent upon her consent and she did not .consent thereto. The said judgment may be attacked on this ground only by motion in tire cause.

“While it is a settled principle of law in this jurisdiction that a consent judgment cannot 'be modified or set a-side without the consent of the parties thereto, except for fraud or mutual mistake, and the proper procedure to vacate such judgment is by an independent action; it is equally well settled that when a party to an action denies that he gave his consent to the judgment as entered, the proper’ procedure is by motion in the cause.” King v. King, 225 N.C. 639, 35 S.E. 2d 893, and cases cited.

The said judgment of November 25, 1957, is regular on its face. If void in fact, plaintiff’s remedy is by motion in the cause. Monroe v. Niven, 221 N.C. 362, 20 S.E. 2d 311, and cases cited; Henderson v. Henderson, 232 N.C. 1, 10, 59 S.E. 2d 227.

Notice is taken of the fact that the $2,000.00 note, on which the judgment of November 25, 1957, was based, was not, according to plaintiff’s allegations, secured by a balance purchase price mortgage or deed of trust. Hence, G.S. 45-21.38 has no application. Brown v. Kirkpatrick, 217 N.C. 486, 8 S.E. 2d 601. We perceive no reason why a seller of real estate may not require, in lieu of cash, that the purchaser assure payment of the deferred) portion of the purchase price, in whole or in part, by giving a note therefor, with endorsers, rather than by giving a balance purchase price note, with mortgage or deed of trust on the property as security therefor.

Affirmed.

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Bobbitt, J.

Plaintiff may not attack by independent action the judgment of November 25, 1957, entered in said separate civil action, on the ground that its validity is dependent upon her consent and she did not .consent thereto. The said judgment may be attacked on this ground only by motion in tire cause.

“While it is a settled principle of law in this jurisdiction that a consent judgment cannot 'be modified or set a-side without the consent of the parties thereto, except for fraud or mutual mistake, and the proper procedure to vacate such judgment is by an independent action; it is equally well settled that when a party to an action denies that he gave his consent to the judgment as entered, the proper’ procedure is by motion in the cause.” King v. King, 225 N.C. 639, 35 S.E. 2d 893, and cases cited.

The said judgment of November 25, 1957, is regular on its face. If void in fact, plaintiff’s remedy is by motion in the cause. Monroe v. Niven, 221 N.C. 362, 20 S.E. 2d 311, and cases cited; Henderson v. Henderson, 232 N.C. 1, 10, 59 S.E. 2d 227.

Notice is taken of the fact that the $2,000.00 note, on which the judgment of November 25, 1957, was based, was not, according to plaintiff’s allegations, secured by a balance purchase price mortgage or deed of trust. Hence, G.S. 45-21.38 has no application. Brown v. Kirkpatrick, 217 N.C. 486, 8 S.E. 2d 601. We perceive no reason why a seller of real estate may not require, in lieu of cash, that the purchaser assure payment of the deferred) portion of the purchase price, in whole or in part, by giving a note therefor, with endorsers, rather than by giving a balance purchase price note, with mortgage or deed of trust on the property as security therefor.

Affirmed.

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Bluebook (online)

111 S.E.2d 705, 251 N.C. 348, 1959 N.C. LEXIS 604, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-owens-nc-1959.

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