#### R. M. COX et al., Administrators, v. C. V. S. BOYDEN, Administrator.

(Filed 10 April, 1918.)

1. Appeal and Error — Superior Courts — Judgments—Motions—Procedure.

Where the Supreme Court has reversed a judgment of the Superior Court, refusing to set aside a former judgment of the latter court upon the ground that the court was without jurisdiction to set aside a judgment theretofore rendered, apparently by consent of a party when such consent had not in fact been given, a subsequent hearing of this motion, in accordance witb the course and practice of the court, is a compliance with the decision of the Supreme Court, and a denial of the motion does not deprive the movant of the benefit of the decision, or ignore the fact that the prior Superior Court judgment had been reversed on appeal.

2. Appeal and Error — Judgments—Motions—Evidence—Findings—Duress.

The findings of the Superior Court upon the evidence on motion to set aside a judgment are conclusive on appeal; and where a movant has appeared in court with her attorney and upon affidavit withdraws her motion to set aside the judgment and requests that it be enforced as rendered, which is accordingly granted, without exception or appeal; and thereafter she again moves to set aside the judgment upon the ground of duress or coercion, the denial of the motion by the trial judge, upon findings that she had been fairly and impartially treated, without duress or coercion, will not be disturbed on appeal.

Civil actioN, heard by Adams, J., at September Term, 1917, of Fob-syti-i.

This is a motion to set aside a judgment rendered at August Term, 1913, in the above entitled cause.

*369The following are tbe facts as'found and recited by Judge Adams in tbe judgment rendered by him:

“This cause was instituted in Surry County, and Judge Lyon rendered a judgment herein in tbe county of Forsytb at tbe December Term, 1911, purporting to be by consent of tbe parties. At tbe October Term, 1913, O. Y. S. Boyden entered-a motion on notice to set aside tbis judgment on. tbe ground that it was made without her knowledge and without tbe consent of either herself or her counsel. Tbis motion was beard at tbe February Term, 1914; of tbe Superior Court of Forsytb County, and bis Honor, Judge Devin, declined to consider tbe affidavit and motion on tbe ground that be was without power to disturb tbe judgment rendered by Judge Lyon. An appeal was taken to tbe Supreme Court, and after tbe opinion of tbe Supreme Court was rendered in tbe cause (16? N. 0., 320), tbe motion again came'on to be beard before Judge Gline in Surry County at August Term, 1915. At tbe bearing O. Y. S. Boy-den signed a paper-writing and acknowledged tbe execution of tbe same before J. A. Jackson, Clerk of tbe Superior Court óf Surry County, which is filed in tbe cause, to which reference is made, and at the same time Judge Gline rendered a judgment in tbe cause in Surry County, to which also reference is made. No appeal was taken by 0. Y, S. Boyden or any other party from tbe judgment of Judge Gline.

“O. Y. S. Boyden now comes in her own proper person and as adminis-tratrix of N. A. Boyden and files an affidavit and petition subscribed and verified by her before Ernest Transou, deputy clerk Superior Court of Forsytb County, 1? September, 1917, which is filed in tbe cause, praying tbis court, sitting in Forsytb County, to set aside tbe judgment rendered by Judge Gline. 0. Y. S. Boyden appears-in court in person and by her attorneys, Benbow, Hall & Benbow, in her personal capacity and in her capacity as administratrix of N. A. Boyden, and requests tbe court to bear tbis motion in Forsytb County, and produces a written paper signed by her consenting that tbe cause be beard in Forsytb County at tbe May Term, 1917, of tbe Superior Court, instead of being beard in Surry County. Tbe bearing having been continued by consent, C. Y. S. Boyden now requests tbe court, in person, and through her attorneys, to bear tbe motion in Forsytb County, and expressly states that in her personal capacity and in her representative capacity she consents that tbe motion be beard here. As stated, 0. Y. S. Boyden did not appeal from tbe order of Judge Gline, but filed certain affidavits before Judge Stacy at tbe October Term, 1916, Superior Court of Surry County, and it seems that tbe motion was continued from time to time in Surry, and now comes- on for bearing in Forsytb County by consent of all parties.”

*370The following judgment was entered by Judge Cline at August Term, 1913:

“This cause coming on to be heard before his Honor, E. B. Cline, judge presiding, and being heard by him, and the defendant, O. V. S. Boyden, being present in open court in her proper person and being also represented by counsel, W. L. Re.ece, and thereupon the said O. V. S. Boyden having assigned and acknowledged a paper-writing, which said paper-writing is made a part of the record in this cause, whereby the said 0. Y. Boyden, individually and as said administratrix, withdrew her motion to set aside the judgment rendered in this cause by his Honor, C. C. Lyon, judge presiding at December Term, 1911, of the Superior Court of Forsyth County, and whereby she further agrees and consents that said judgment should be declared valid by this court at this term, and that all other judgments heretofore signed subsequent to said judgment of December, 1911, shall also be declared valid judgments and binding upon all the parties to this action: Now, therefore, it is ordered and adjudged that the judgment signed by C. C. Lyon, judge presiding, at the December Term, 1911, of Forsyth Superior Court, is a valid judgment and binding upon all the parties hereto, and that the judgment signed by his Honor, C. M. Coolce, judge presiding, at For-syth Superior Court, and that all judgments and orders made in this cause since the judgment at December, 1911, are hereby declared valid and binding on all the parties in this cause. And it is further ordered that all sales of land heretofore made by commissioners in this cause are hereby ratified and confirmed in all respects.”

The Court then further adjudged that E. L. Gaither, Esq., the commissioner, collect the purchase money for the lands theretofore sold by him from S. E. Marshall, the purchaser, and distribute the proceeds as therein directed.

It is further stated that 0. Y. S. Boyden bases her motion to set aside the judgment upon her denial that she had ever signed any paper-writing, for plaintiff or others, in which she' withdrew objection to the judgment rendered by Judge Lyon and the orders and judgments subsequent thereto, or that she had waived all objection to the paper she signed at August Term, 1913 (Exhibit A), which she alleges was obtained by intimidation, coercion, and duress, and which was a waiver only of her right to object to the judgments, because they were rendered, and to the orders, because they were made, in Surry County, all other objections being reserved by her. The following is a copy of the paper so signed by O. Y. S. Boyden:

“While this case was being heard before his Honor, E. B. Cline, judge presiding at the August Term, 1915, of Surry Superior Court, upon a motion to set aside the judgment heretofore rendered by his Honor, C. C. Lyon, Judge, and in obedience to the order and direction of the opinion *371of tbe Supreme Court rendered in tbis cause, as reported in 167 N. 0., at page 320, wben tbe Court bad intimated and stated tbat it would not set aside tbe judgment of Judge Lyon rendered and signed in Forsyth County and any other orders, judgments and decrees thereon, consider tbe findings and report of tbe referee, and if tbe court decided to confirm tbe report of tbe referee would direct a sale of all tbe real estate according to tbe recommendations of tbe referee, tbe defendant O. Y. S. Boyden being present in court in ber own person and as administratrix of N. A. Boyden, deceased, hereby states in open court, and by ber signature hereto directs tbe record to be entered and made, tbat she both individually and officially withdraws all and every further objection to tbe judgment of Judge Lyon of 8 December, 1911, and tbe other orders and judgments subsequent thereto made in tbis cause, and hereby assents to them as fully in all respects as though they bad been made and signed in Surry County during tbe sitting of tbe court, and further consents and hereby agrees in open court tbat bis Honor, Judge Cline, may sign a confirmatory order and judgment approving, affirming, sustaining and validating in all respects all and everything done or directed to be done in tbe judgments and orders heretofore made as aforesaid, regardless of tbe date and place at which they were made and signed.

Tbis statement is duly executed by tbe said O. Y. S. Boyden, as witness ber signature hereto and acknowledged before tbe clerk of tbis court. C. Y. S. BoykeN.

North CaeoliNA — Surry County.

I, J. A. Jackson, clerk of tbe Superior Court of Surry County, do hereby certify tbat C. Y. S. Boyden personally appeared before me tbis day and acknowledged tbe due execution of tbe foregoing instrument for tbe purposes therein expressed. Let tbe instrument, with tbis certificate, be registered.

Witness my band and official seal, tbis 2d September, 1915.

J. A. Jackson.

Judge Adams rendered judgment upon tbe facts above stated, as follows: “Opon consideration of tbe record and tbe affidavits filed on tbe bearing before me, I find tbat C. Y. S. Boyden signed tbe paper-writing referred to without intimidation or coercion or duress, and tbat she signed tbe same freely and voluntarily. It is, therefore, ordered and adjudged tbat tbe motion of C. Y. S. Boyden to set aside tbe judgment rendered by Judge Cline in tbe Superior Court of Surry County be and tbe same is hereby denied, and tbat plaintiffs recover of C. Y. S. Boyden their cost of tbis action to be taxed by tbe clerk.”

C. Y. S. Boyden excepted to tbis judgment and appealed.

*372 Manning & Kitchin and Lindsay Petterson for plaintiffs.

R. W. Winston for defendant.

Walker, J.,

after stating tbe case: Tbe defendant excepts to tbe judgment upon tbe grounds tbat sbe was deprived of tbe benefit of our decision in tbis case at a former term (167 N. 0., 320), and tbat tbe presiding judge did not consider tbe fact tbat tbe judgment of August Term, 1913/ reversed tbat decision. We do not perceive bow either 'objection is possibly tenable or bas any merits. Judge Adams gave her tbe full benefit of oxir former decision, by wbicb sbe was only entitled to bave it ascertained by tbe Superior Court wbetber sbe bad in fact assented to tbe judgment rendered by Judge Lyon. It was alleged tbat sbe bad waived tbe objection to Judge Lyons judgment, which objection was tbat sbe bad not consented thereto. Judge Cline investigated this matter after our opinion bad been certified down, and found tbat sbe bad waived all objection to tbe judgment by withdrawing ber motion to set it aside and agreeing expressly tbat Judge Lyon's judgment rendered in December, 1911, should be declared valid and binding upon ber and all other parties, and also tbe other judgments signed subsequent thereto. Tbat tbis was done when sbe was personally present in court and represented by counsel, by a paper-writing signed and acknowledged by ber, and it was thereupon declared and decreed by tbe court without any objection, but with ber consent, tbat tbe judgment signed by Judge Lyon, as well as tbat afterwards signed by Judge Cooke, and all subsequent judgments rendered and all orders made in tbis cause should be likewise binding on all tbe parties. From tbis judgment no exceptions were taken or appeal entered.

After tbis was done, C. Y. S. Boyden, at October Term, 1916, made tbis motion before Judge Stacy to set aside tbe judgment of Judge Cline upon tbe ground tbat sbe did not assent thereto, and that tbe paper-writing purporting to give ber consent to it was obtained by coercion, intimidation and duress. Upon a full and exceedingly fair bearing, Judge Adams bas decided tbis motion against ber, after considering, all tbe facts, and we concur with him tbat both tbe judgment of Judge Lyon and tbat of Judge Cline are valid. Tbat sbe waived all objection to the Lyon judgment, and tbat tbere was no duress or undue influence brought to bear upon ber in order to secure ber consent to tbe Cline judgment, but tbe same was freely and voluntarily given without any fear or compulsion. An option or choice between two fair alternative proposals may bave been mistaken for coercion, but we do not so regard it. There was no advantage -taken of ber, but sbe was left to exercise her judgment and discretion without any dictation, but at ber own free will and pleasure. Sbe bas been treated with perfect fairness and consideration *373and must abide tbe result, as sbe bad no ground for relief in law or equity.

As tbe judge bas found tbe facts, we are bound by bis findings, as we have often beld, there being evidence wbicb supports tbem. Matthews v. Fry, 143 N. C., 384; Harris v. Smith, 144 N. C., 439; Williamson v. Bitting, 159 N. C., 321; Drainage District v. Parks, 170 N. C., 435; In re Inheritance Tax, 172 N. C., 170. Tbe question is essentially one of fact, and therefore bas been substantially closed by tbe judge’s findings. Meadows v. Wharton, 147 N. C., 180; Perry v. Perry, ibid., 367. All of tbe objections must be overruled.

Affirmed.