#### SALLIE A. CRADDOCK v. DAVID O. BRINKLEY.

(Filed 19 February, 1919.)

1. Judgments — Consent—Actions—Motions in Cause — Husband and Wife— Insanity.

An -action brought by the wife to set aside a compromise judgment concerning her lands, to which the husband was a party and agreed to by him at a time she was insane and confined in an asylum, with allegation of these facts, is a direct proceeding to set aside the judgment, and not a collateral attack thereon.

2. Judgments — Fraud—Independent Action — Motion in Cause — Court’s Discretion — Same County.

An independent action is the proper remedy to set aside a judgment on the ground of fraud, and on any other ground it should be by motion in the cause; yet where both actions' are brought in the same county the-court may, in its discretion, treat the summons and complaint in the second action as a motion in the original one.

3. Husband and Wife — Actions—Joinder—Insanity of Wife — Judgments— Consent — Principal and Agent — Statutes.

The joinder of the husband in-an action maintainable against the wife-alone, Rev., 563 (4), though unnecessary, makes the husband the agent of the wife, when she is not present in person or by attorney, for the purposes of the suit; this does not obtain if she is insane, and his consent in such ease to the entry of a judgment affecting her lands is voidable, and she may thereafter move to have it set aside.

4. Husband and Wife— Actions— Married Women— Statutes— Guardian— Next Friend.

It is not required that the wife, as such, prosecute or defend an action concerning her lands by guardian or next friend. Rev., see. 407.

*1265. Appeal and Error — Supreme Court — Counterclaim—Consent of Counsel— Judgments.

Where plaintiffs attorneys consent, in the Supreme Court, to a judgment as on a counterclaim, not pleaded or urged in the lower court, this entry may he made in the lower court when the certificate of the judgment on appeal is filed there.

Beown, J., not sitting.

Appeal by defendant from Whedbee, J., at Special September Term, 1918, of WASHINGTON.

Tbe plaintiff, a married woman, owned land adjoining tbe defendant. Prior to 1906, controversy arose as to tbe line of division between tbe two tracts and a suit was instituted in tbe name of berself and busband against tbe defendant. Summons was issued, but it does not appear tbat any pleadings were filed. At tbe time of tbe commencement of tbe suit in 1906 tbe plaintiff was insane. No next friend was appointed for ber, and at Fall Term, 1906, of Washington, wbat purports to be a consent judgment was signed establishing tbe line, giving tbe defendant twenty acres of land, which tbe jury now find belonged to tbe plaintiff. Tbe plaintiff at tbat time was insane and' confined in an asylum, and it appears tbat tbe busband, after conference with defendant’s attorney, accepted fifty dollars, in consideration of which tbe judgment was entered.

Small, MacLean, Bragaw & Rodman, Meelcins & McMillan, and Z. V. Norman for plaintiff. -

Ward & Ch'imes for defendant.

Clark, C. J.

Tbe jury find tbat tbe plaintiff was insane and confined in an insane asylum at tbe time tbe former action was instituted, and also at tbe time tbe consent judgment was entered, and tbat tbe twenty acres in controversy are ber property. Tbe defendant enters two assignments of error:

1. Tbat this proceeding cannot be maintained because it is'a collateral attack upon tbe former judgment, and tbat plaintiff’s remedy is by a motion in tbe cause.

2. Tbat tbe judgment in tbe former action is an estoppel on tbe plaintiff, and conclusive, because tbe action was brought in tbe joint name of ber busband and berself, and tbat be was ber legal representative in tbe action.

As to tbe first proposition, this is not a collateral attack, but a direct proceeding to set aside tbe judgment. Tbe insanity of tbe plaintiff and the invalidity of tbe judgment for tbat reason are alleged, and there are *127both, ground and prayer to set aside tbe judgment, and also a demand for tbe recovery of tbe property.

It is true tbat wben tbe ground alleged for setting aside tbe judgment is not based upon fraud, tbe proper remedy is by motion in tbe cause, but we bave no distinct forms of action now, and it has been beld tbat wben a party by mistake brings an independent action wben bis remedy is by motion in tbe original cause, tbe court may, in its discretion, treat tbe summons and complaint as a motion. Jarman v. Saunders, 64 N. C., 367. It is true tbat an independent action, wben brought in -another county, cannot be treated as a motion in tbe cause (Rosenthal v. Roberson, 114 N. C., 594), but tbat does not obtain here as tbe proceeding is in tbe same county.

As to tbe second point, tbe jury having found tbat tbe plaintiff was insane, she could not be represented by her husband, since even if she bad been present in person or by counsel, tbe judgment would bave been invalid. Tbe judgment was not void, but voidable, as between tbe parties (Thomas v. Hunsucker, 108 N. C., 724), and on tbe finding of tbe jury was properly set aside. Tbe same would bave been true as to a deed executed by her. Odom v. Riddick, 104 N. C., 515, and cases cited in the Anno. Ed.

Revisal, 563 (4), expressly provides tbat judgment may be taken against a married woman, whether plaintiff or defendant, “in tbe same manner as against other persons,” and we would not be considered as affirming tbe ruling (by a divided Court) in McLeod v. Williams, 122 N. C., 451, in which it was beld tbat a wife would not be bound by her assent in person in open court to a compromise judgment in an action to which she is a party defendant, but we rest our decision upon tbe proposition tbat though wben she and her husband sue or are sued jointly be is ordinarily to be taken as her authorized agent wben she is not present in person or by counsel. Smith, C. J., in Vick v. Pope, 81 N. C., 22; Neville v. Pope, 95 N. C., 346; Grantham v. Kennedy, 91 N. C., 148, and cases cited thereto in tbe Anno. Ed. In this case tbe jury having found tbat wben tbe writ was issued by her husband in their joint names, and also wben tbe judgment was taken tbe plaintiff was insane, it follows tbat be could not bave been authorized to assent to tbe judgment as her agent, and tbe judgment was voidable in this proceeding. It was not necessary tbat tbe husband should be joined in tbe action, but being joined, prima facie, be was acting as her agent. “In no case need she prosecute or defend by guardian or next friend.” Revisal, 407.

Though there is no counterclaim set up in tbe answer, tbe plaintiff’s counsel assets in this Court — to avoid tbe necessity of another action— tbat judgment may be taken' against her for tbe fifty dollars paid her *128husband by defendant in 1906, with interest thereon from date of such payment. This entry may be made in the court below when the certificate of this judgment on appeal is filed.

No error.