Carpenter v. . Carpenter

195 S.E. 5, 213 N.C. 36, 1938 N.C. LEXIS 7

• Court: Supreme Court of North Carolina
• Decided: February 2, 1938
• Status: Published

Opinion

Winborne, J.

Do the terms of the consent judgment of 23 March, 1934, establish the relation of mortgagors and mortgagees between the plaintiffs and defendants, R. E. O’Briant and wife, purchasers at the mortgage foreclosure sale? This question is determinative of the case on appeal. The court below answered “No.” With this we agree.

“A judgment or decree entered by consent is not the judgment or decree of the court so much as the judgment or decree of the parties, entered upon its record with the sanction and permission of the court, and being the judgment of the parties it cannot be set aside or entered without their consent.” Ellis v. Ellis, 193 N. C., 216, 136 S. E., 350, and cases cited.

The judgment is, therefore, to be construed in the same way as if the parties had entered into the contract by writing duly signed and delivered. Bunn v. Braswell, 139 N. C., 135, 51 S. E., 927.

The parties have agreed and declared that the sale under the mortgage deed executed by plaintiffs to J. W. Carpenter is valid in all respects, and that R. E. O’Briant and wife, who purchased at that sale, acquired a fee simple title “fully freed, released and discharged from any or all right, title or interest” of plaintiffs. Their language is specific, plain and unambiguous. In their ordinary meaning the words used clearly express the intention of the parties. Nothing else appearing, R. E. O’Briant and wife are the owners in fee simple of the property in question.

The right given to plaintiffs to have a deed made to them by O’Briant and wife for the property is no more than an option to purchase within a given time. The judgment contains nothing which obligates the plaintiffs to buy. It is an unilateral agreement, “merely a right acquired by contract to accept or reject a present offer within a limited or reasonable time.” Mizell v. Lumber Co., 174 N. C., 68, 93 S. E., 436. “Contracts of this character, being unilateral in their inception, are construed strictly in favor of the maker, because the other party is not bound to performance, and is under no obligation to buy, and it is generally held that time is of the essence of such contract, and that the conditions imposed must be performed in order to convert the right to buy into a contract for sale.” Winders v. Kenan, 161 N. C., 628, 77 S. E., 687.

The case of Bunn v. Braswell, supra, upon which the plaintiffs rely, is distinguishable from the case at bar. The consent judgment there declared “that the defendant has an equity to redeem the land” upon payment of a sum certain within a given time, otherwise to “stand absolutely debarred and foreclosed of and for any and all equity or other estate or interest in the premises.” Speaking to the question, Connor, 7., said: “The term, 'right to redeem,’ is appropriate to express the right, interest or estate of a mortgagor, and not a vendee. When we speak of the interest of one in or right to real estate as an 'equity of redemption/ wbicb is synonymous witb. Tight to redeem/ we understand that reference is made to the status of a mortgagor, not a vendee.” There it was manifest that the defendant had an equity in the premises. But in the case at bar we do not have the relationship of debtor and creditor. The expressions “equity to redeem,” “equity of redemption,” “right to redeem,” or words of like meaning, are not used here.

The judgment below is

Affirmed.

Barnhill, J., took no part in the consideration or decision of this case.