#### JESSE B. MORRIS v. R. D. PATTERSON.

(Filed 1 December, 1920.)

1. Judgments — Consent—Contracts—Courts.

A consent judgment is a contract of record between tbe parties entered witb tbe approval of tbe court.

2. Same — Husband and Wife — Divorce—Statutes.

In an action brought by tbe wife for a divorce a mensa, C. S., 2529, an agreement that the wife have a life estate in certain of ber husband’s lands, remainder to their children, would have been valid as a voluntary conveyance, and is binding as a consent judgment, though a divorce has not been decreed therein; and it is not affected by the fact that an award of the children has therein been made with the sanction of the court. C. S., 1668, and a writ of possession may be issued. C. S., 1664.

3. Same — Fraud—Mistake,

As in other instances of contract, a consent judgment entered in the wife’s action for divorce a mensa, affecting the husband’s lands and the disposition of the children among the parties, but not decreeing a divorce, estops the parties thereto actually consenting, in the absence of fraud or mutual mistake.

4. Courts — Jurisdiction—Judgments—Consent.

While the consent of the parties cannot confer jurisdiction on the courts, a consent judgment entered by a court having jurisdiction over parties who had the power to consent, and over the subject-matter, is conclusive.

5. Judgments — Consent—Fraud—Mistake—Action—Collateral Attack— Burden of Proof.

To attack, in an independent action, a judgment by consent entered by a court of competent jurisdiction of the parties and subject-matter, the burden of proof is upon the plaintiff to show that the judgment was obtained by fraud or mutual mistake, or that consent was not, in fact, given.

*4856. Judgments — Consent—Amendments—Courts.

A consent judgment can be amended only by consent, and is an exception to the rule that judgments may be modified by the judge during the term at which they are rendered.

7. Judgment — Consent—Lands—Estates—Deeds and Conveyances — Title —Third Persons.

A consent decree for. the recovery- of lands in fee has the effect of conveying the legal estate in fee “as between the parties,” and is good as against third persons in the absence of fraud or collusion. C. S., 608.

8. Parties — Judgments—Consent—Vendor and Purchaser.

Where, under a valid consent judgment, the wife and children of the plaintiff have an estate in a part of the husband’s lands, they are not parties necessary to the determination of his action to compel his vendee to accept his deeds to lands, including those affected by the consent judgment.

Appeal by defendant from Lome, Jat September Term, 1920, of RANDOLPH.

At March Term, 1918, there was an action pending in the Superior Court of Randolph brought by Mattie L. Morris against her husband, J. B. Morris, the plaintiff in this case, asking for a divorce from bed and board, and to be allowed to live separate and apart from her husband. At that term a consent judgment was entered, and signed by Jones, J., reciting that the jury had been impaneled, and both parties being present and represented by counsel, and it being shown to him that they had arranged and settled their controversy, and it being shown to the court also that the parties were then, and had been for some time, living separate from each other; and it being further shown to the court that the parties have five living children, “Now, by consent in open court, it is ordered, decreed, and adjudged that the plaintiff have and hold for the term of her natural life the'traet of land purchased by the defendant from G-. F. York, described as fbllows: (description of land) ; and upon the expiration of the life estate the aforedescribed land is to 'become' the property of the children of the defendant, Jesse B. Morris, by his wife, Mattie L. Morris, and of the issue of such as may then be dead.” There was a further, provision that the plaintiff in that action (the mother) was “to have the care and custody of the three youngest children, and the defendant (the father) the care and custody of the two older children; and that each of the parties should be permitted to visit at will the children left in the custody of the other”; that the parties to that action are “allowed to live separate in the future, and each party releases and quitclaims to the other all interests in the property of the other by reason of the marital relation; that the defendant may have the right to remove from the tracts allotted to the plaintiff *486the growing crop and all personal property which he has on the said premises; that each party shall pay one-half of the costs.”

On 15 April, 1920, said Jesse B. Morris entered into a contract with R. D. Patterson to convey to him, upon payment of $5,500, a warrantee title to certain tracts of land described in said contract, which includes the land settled as aforesaid upon the plaintiff’s wife and children, as recited in the aforesaid consent judgment, and tendered the defendant the deed therefor, who refused to accept the same upon the ground that by the consent judgment of March Term, 1908, certain parts of said land had by final decree been conveyed by the plaintiff to his wife and .children, and is still vested in them.

Lane, J., presiding at said September term, held that the consent judgment was null and void, and that the plaintiff could convey a free and unencumbered title to said land, and rendered judgment in the said sum of $5,500 and interest and costs. Appeal by defendant.

Seawell & Millikin for plaintiff.

Dan B. King for defendant.

Olakk, O. J.

A consent judgment is simply a contract of record, entered with the approval of the court. In Bank v. Comrs., 119 N. C., 226, it is held: “Consent judgments are, in effect, merely contracts of parties, acknowledged in open court, and ordered to be recorded. As such, they bind the parties thereto as fully as other judgments,” provided the parties had the authority to make such contract. This has been often affirmed since.

The only question for our consideration is the power of the husband and wife to make such contract. In Cram v. Cram, 116 N. C., 294, the Court held that our statute, now C. S., 2529, recognized as valid “a deed of separation between husband and wife, registered in the county in which she resides,” when she is living separate from her husband, quoting Sparks v. Sparks, 94 N. C., 527, though it was further said that the courts did not look with favor upon such contracts, citing Smith v. King, 107 N. C., 276.

It follows, therefore, that if the contract between the husband and wife to convey to her a certain tract of land for her support with remainder to her children had been made out of court it would have been, at least, prima facie valid, and in any view, the voluntary conveyance would have been binding on the husband.

The action was brought by the wife for divorce from bed and board, and also from separation under C. S., 1667. Such action was without collusion, and was being tried when the parties, both present in person, and also represented by counsel, made known to the court that they had agreed upon a settlement.

*487Tbis agreement did not include any decree for divorce, which, would have been void, but is simply an agreement for separation with a conveyance by the decree, with the consent of the parties, of a certain part of land to Ms wife and children. Such conveyance the husband could have made if there had been no action pending, and in such proceeding the court could, under the authority of O. S., 1667, have caused “the husband to secure so much of his estate for the benefit of his wife and children as may be proper,” and when the court makes such an order granting “alimony by the assignment of real estate, the court has power to issue a writ of possession,” C. S., 1668, and under C. S., 1664, the court had power to adjudge the' custody of the children, as was done in this ease by the consent of the parties.

The court, in the former judgment, had jurisdiction of the parties and subject-matter, and the judgment would have been valid except as to the conveyance to the children after the death of the wife, and as to that the husband, in open court, in person and by counsel, assented to the judgment, and did not appeal.

It is true that consent cannot confer jurisdiction, but when, as in this case, the court had jurisdiction and the parties had power to consent, the judgment is conclusive. In Gardiner v. May, 172 N. C., 194, Walker, J., says “As to nature and legal effect of consent judgments . . . where parties solemnly consent that a certain judgment be entered on the record, it cannot be changed or altered, or set aside without the consent of the parties to it, unless it appears, upon proper allegation and proof and finding of the court that it was obtained by fraud or mutual mistake, or that consent was not in fact given, which is practically the same thing, the burden being upon the party attacking the judgment to show facts which will entitle them to relief. Edney v. Edney, 81 N. C., 1; Stump v. Long, 84 N. C., 616; McEachern v. Kerchner, 90 N. C., 179; Vaughan v. Gooch, 92 N. C., 527; Lynch v. Loftin, 153 N. C., 270; Simmons v. McCullin, 163 N. C., 409, and Harrison v. Dill, 169 N. C., 542, where the subject is fully considered and the authorities reviewed.”

In Stump v. Long, 84 N. C., 616, it was held that “a judgment or order made in a cause by consent of parties, or their attorneys, is binding and cannot be set aside or modified, except upon ground of mistake by both parties or by fraud, and this by civil action and not by motion.”. This case has been often cited and approved, see Anno. Ed. In Vaughan v. Gooch, 92 N. C., 524, it was held: “An order or judgment made by consent cannot be set aside or modified, unless by consent, except for fraud, or mistake of both parties.” See cases therein cited and citations in Anno. Ed. In Simmons v. McCullin, 163 N. C., 414, it is said: “A judgment entered by the court, upon the agreement of the parties, is, to. *488say tbe least, as conclusive upon them as if judgment were rendered in tbe ordinary course of proceeding's,” citing many cases. A consent judgment will not be set aside upon tbe ground of surprise or excusable neglect, Hairston v. Garwood, 123 N. C., 345.

Sucb judgment cannot be impeached collaterally, but only by a direct proceeding for fraud, and where a consent judgment is entered upon a replevin bond in claim and delivery, tbe sureties could not attack .it for fraud by motion, but might proceed by a direct action. McDonald v. McBryde, 117 N. C., 125. A consent judgment can be amended only by consent, and is an exception to tbe rule that judgments may be modified by tbe judge during tbe term at which they are rendered. Deaver v. Jones, 114 N. C., 651, citing 1 Black Judgments, 305, 308, 319; Freeman on Judgments, 111 a; McEachern v. Kerchner, 90 N. C., 179, and many other cases.

In 1 R. C. L., 947, it is held that while decrees allowing alimony may be modified by the court from time to time, that this is not so when the alimony embraced in tbe decree is entered by the consent of parties, “for such a modification of the decree would be no less a modification of the contract itself; which is not subject to revocation or modification except by consent of the parties thereto,” citing Pryor v. Pryor (Ark.), 129 Am. St., 102; Henderson v. Henderson (Or.), 48 L. R. A., 766; 13 Anno. Cas., 296, and note.

In 15 R. C. L., 645, it was held that a consent judgment was binding upon husband and wife, if consented to by both, citing Bank v. McEwen, 160 N. C., 414; Simmons v. McCullin, 163 N. C., 409. In 1 Black on Judgments, 319, it is said that while “A court has power to vacate and set aside a consent judgment on account of fraud, mutual mistake, or surprise, it cannot alter or correct it, except with the consent of all the parties affected by it,” citing Kerchner v. McEachern, 93 N. C., 447; Stump v. Long, 84 N. C., 616.

C. S., 608, provides: “Every judgment in which the transfer of title is so declared shall be regarded as a deed of conveyance, executed in due form and by capable persons.” In Rollins v. Henry, 78 N. C., 350, it was held that “a decree made by consent that the plaintiff will recover the land in controversy had the effect of conveying the legal estate in fee as between the parties,” and was good against third persons in the absence of fraud or collusion.

In Holloway v. Durham, 176 N. C., 553, Hoke, J., says that “the defendant insists that this being a judgment by consent, the parties are not confined to the matters in controversy presented in their pleadings, and that the present judgment was intended to be and is an adjustment concluding the parties as to any and all damages that plaintiff, his heirs and assigns, might at any time suffer from the erection and maintenance *489of defendant’s plant. Tbe decisions in tbis State bave gone very far in approval of tbe principle tbat a judgment by consent is but a contract between tbe parties, put upon tbe record witb tbe sanction and approval of tbe court, and would seem to uphold tbe position tbat sucb a judgment may be entered and given effect as to any matters of wbicb tbe court bas general jurisdiction, and tbis witb or without regard to tbe pleadings. Bank v. McEwen, 160 N. C., 414; Bunn v. Braswell, 139 N. C., 139; Bank v. Comrs., 119 N. C., 214; Vaughan v. Gooch, 92 N. C., 524. Sucb a ruling bas tbe support of well considered authority elsewhere. Fletcher v. Holmes, 25 Ind., 458; Seiler v. Mfg. Co., 50 W. Va., 208, 218; Beach Modern Eq. Pr., sec. 794; 2 Black Judgments, sec. 705; 23 Cyc., 728.”

There are some circumstances in wbicb a judgment by consent of counsel will be set aside. Davis v. Bank (Geo.), 46 L. R. A. (N. S.), 750. But these are tbe exceptions. Where tbe parties themselves bave joined in tbe consent, and there is no fraud or mutual mistake shown, tbe judgment is conclusive.

There are many and insuperable reasons against treating tbe former judgment of 1908 as a nullity; tbe court bad jurisdiction'of tbe parties and tbe subject-matter; tbe consent was by tbe parties themselves as well as by counsel, and extended only to matters as to wbicb tbe parties could bave agreed out of court; tbe judgment by consent could not be modified except by consent; tbis was not an action to set it aside by fraud or mutual mistake, and no ground for sucb allegation is set out; if there was mutual mistake, then there is tbe long lapse of time; neither tbe wife nor tbe children, who bold title under tbe consent judgment, are made parties to tbis action; and tbe judgment cannot be impeached in tbis collateral proceeding.

Tbe judgment was entered witb tbe consent of tbe plaintiff, and is-binding upon him as a conveyance of record of tbe land in a pending suit for alimony, and tbe land was assigned and settled by tbe court upon bis wife and children in compromise of tbat matter witb tbe consent of tbe plaintiff. Any decree in tbis cause would bave been invalid if entered against them, but as tbe Court is of tbe opinion tbat they obtained a valid title by tbe consent judgment of 1908, it is not necessary tbat they should be parties to this action between tbe plaintiff and bis vendee.

Eeversed.