Ellis v. . Ellis

136 S.E. 350, 193 N.C. 216, 1927 N.C. LEXIS 303

• Court: Supreme Court of North Carolina
• Decided: January 26, 1927
• Status: Published

Opinion

Brogden, J.

Is the consent judgment, March Term, 1925, in compromise and settlement of the differences existing between the plaintiff and the defendant void?

Unquestionably, “a void judgment is without life or force, and the court will quash it on motion, or ex mero motu. Indeed, when it appears to be void, it may and will be ignored everywhere, and treated as a mere nullity.” Carter v. Rountree, 109 N. C., 29; Moore v. Packer, 174 N. C., 665; Reynolds v. Cotton Mills, 177 N. C., 412.

It will be observed that the judgment sought to be vacated is a consent judgment. “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.” Harrison v. Dill, 169 N. C., 544; Belcher v. Cobb, 169 N. C., 689; Bunn v. Braswell, 139 N. C., 135; Bank v. McEwen, 160 N. C., 414; Simmons v. McCullin, 163 N. C., 409; Gardiner v. May, 172 N. C., 194; Morris v. Patterson, 180 N. C., 484; Distributing Co. v. Carraway, 189 N. C., 420; Bank v. Mitchell, 191 N. C., 190.

At the time this consent judgment was entered, the plaintiff and the defendant were husband and wife. The plaintiff had been granted a decree of absolute divorce from tbe defendant, but tbis decree of divorce was beld to be void in tbe case of Ellis v. Ellis, 190 N. C., 418. Now, if tbe consent judgment is, as a matter of law, tbe contract of tbe parties, and tbe parties were, at tbe time said judgment was entered, man and wife, tbe law required compliance witb C. S., 2515. Tbis contract of tbe parties, referred to as tbe consent judgment, did not comply witb C. S., 2515, for tbe reason tbat there is no private examination of tbe wife and no certificate to tbe effect tbat tbe contract was not unreasonable or injurious to ber. Therefore, if tbe title to tbe land described in the consent judgment is vested by reason of said judgment, such title would be invalid for tbe reasons given. However, it appears tbat, after said consent judgment was rendered, tbe plaintiff executed a deed to tbe defendant for tbe land described therein. Tbis deed was executed in full compliance witb C. S., 2515. If tbis deed was delivered to tbe defendant, and be accepted it, defendant’s title would be valid by virtue of tbe deed itself, and irrespective of any contract between husband and wife.

On tbe other band, tbe plaintiff, Ciará N. Ellis, bolds title to all tbe land described in tbe deed from W. B. Ellis to Clara N. Ellis, dated 20 February, 1901, and duly recorded. Plaintiff, therefore, claims under tbe deed itself, made to ber in 1901 by tbe defendant, and ber title to ber portion of tbe property is valid by virtue of tbat deed and irrespective of tbe consent judgment. Plaintiff, Clara N. Ellis, filed an affidavit in tbis cause, resisting tbe motion of tbe defendant to set aside said consent judgment and declaring tbat she approved tbe judgment, and she is in tbis proceeding requesting tbe court to enforce tbe judgment which carries witb it tbe payment of tbe annuities prescribed therein by tbe plaintiff to tbe defendant. Tbe plaintiff, at tbe time tbis affidavit was filed, and at tbe time tbis motion was made by tbe defendant, was under no disability, and ber conduct in thus appearing in tbis cause will bar ber from questioning tbe obligation imposed of paying said annuities. “A claim made or position taken in a former action or judicial proceeding will estop tbe party to make an inconsistent claim or take a conflicting position, in a subsequent action or judicial proceeding to tbe prejudice of tbe adverse party, where tbe parties are tbe same and tbe same questions are involved.” Holloman v. R. R., 172 N. C., 372; Brantley v. Kee, 58 N. C., 332; Williams v. Scott, 122 N. C., 545.

Tbe defendant contends tbat tbe deed from Clara N. Ellis to him, dated 12 March, 1925, was never delivered to him or accepted by him. There is evidence in tbe record to tbe contrary, but tbis is a disputed fact, and tbe defendant is entitled to have tbis fact found by tbe court. If tbe court shall find tbat tbe deed from tbe plaintiff to tbe defendant, dated 12 March, 1925, was duly delivered to the defendant, then the title to the respective portions of property, referred to in said consent judgment, is valid as to both plaintiff and defendant.

Therefore, this cause is remanded to the Superior Court of Forsyth County to the end that further proceedings may be had in accordance with this opinion.

It is further ordered that the cost of this appeal be divided equally between the parties.

Eemanded.