#### CLYDE WATSON and ALBERT WATSON v. CLEVE WATSON, IDA STILES, FLORENCE CHRIST and CLAY WATSON et al.

(Filed 25 January, 1933.)

Infants B b — Acceptance after majority of benefits under consent judgment entered during minority held ratification of consent judgment.

Certain minors were sued to have a deed executed to them by their father set aside. The mother of the minors, who was also a grantee in the deed and a party defendant in the suit, was appointed guardian ad, litem for the minors, and she accepted service and filed answer. A consent judgment was entered that all the parties plaintiff and defendant were tenants in common in the land, and part of the land was sold under order of court for division. The minors’ share in the proceeds of the sale was paid to their guardian appointed by the court. The guardian i>aid certain of the money to the minors during their minority, and upon their coming of age, paid the balance to them, and they accepted payment with full ^knowledge of all the vital facts. A number of years later they brought suit attaching the consent judgment: Held, by accepting the benefits derived from the sale under the consent judgment after their majority the plaintiffs ratified the same and may not now upset the consent judgment in an action instituted more than eight years after accepting such benefits.

Civil aotioN, before St'aclc, J., at January Term, 1932, of Cherokee.

J. M. Watson died on or about 14 February, 1919, in Cherokee County, owning land in said county. The plaintiffs are the children of the second wife and the defendants are the children of the first wife. It *6was alleged that on 17 January, 1919, a short time before bis death J. M. Watson executed two deeds, purporting to convey certain land owned by him to said Eliza Watson, his second wife, for life, and at her death to her children, Albert Watson and Clyde Watson. It was admitted that the plaintiff, Clyde Watson, was born 14 June, 1901, and that the plaintiff, Albert Watson, was born 30 July, 1902. It was also admitted that Eliza Watson, the second wife, died in August, 1928.

On or about 7 October, 1919, the children of the first marriage brought a suit against the widow and the children of the second marriage, to wit, Eliza Watson, Clyde Watson and Albert Watson, for the purpose of setting aside the deed made to them by J. M. Watson, the father of both plaintiffs and defendants. On 20 November, 1919, the clerk of the Superior Court appointed Eliza Watson, mother of Clyde Watson and Albert Watson, as guardian ad lil&m for said minors. Thereafter a consent judgment was entered in the cause by Judge B. E. Long. The judgment recites: “This cause is compromised upon the terms hereinafter set out, and by consent it is adjudged by the court that the parties plaintiff and defendant, except Eliza Watson, are the owners of the land described in the complaint.” It was further ordered that certain of said lands involved in the suit “be sold by the commissioner hereinafter appointed, and the costs of this action be deducted therefrom and the remainder be distributed among the following children of J. M. Watson, share and share alike.” All the children are named in the decree. It was further decreed that the widow, Eliza Watson, was to have all the personal property of the deceased, J. M. Watson. It was further ordered that S. W. Lovingood “is hereby appointed commissioner to sell the lands of said J. M. Watson . . . who will report sale to the clerk of this court for confirmation or rejection, and for the further orders of the court. This judgment may be signed out of term anywhere in North Carolina.” Appended to the judgment is the following: “By consent. Cleve Watson, O. H. Watson, Gl. A. Watson, for selves and other plaintiffs; Eliza Watson, Albert Watson, Clyde Watson, guardian ad litem of Clyde Watson and Albert Watson, defendants.” On 1 March, 1921, Judge Long entered another judgment in the cause reciting that the cause had been compromised upon certain conditions set out in the judgment. This judgment was consented to by attorneys representing the plaintiffs and the defendants. Lovingood, the commissioner appointed to sell the land reported the sale to the court, stating that he had received the sum of $1,670. Lovingood was appointed guardian for Clyde Watson and Albert Watson in October, 1921. On 15 January, 1927, said guardian filed a report with the clerk of the Superior Court of Cherokee County, disclosing that he had disbursed and paid to Clyde Watson and Albert Watson the net proceeds arising from the sale of the land.

*7On or about 11 June, 1929, Clyde Watson and Albert Watson brought a suit against tbe defendants, who were the children of the first marriage, alleging that they were the owners in fee of the lands conveyed by J. M. Watson to them by deed dated 17 January, 1919, and that the defendants claim an interest or estate in said property, which constituted a cloud upon their title. The defendants answered, setting up the consent judgment signed by B. F. Long, judge presiding, heretofore referred to. It was admitted that the plaintiffs “are now the owners of said land unless they have been divested of said title by reason of a certain judgment in another action.” This admission apparently refers to the consent judgment entered by Judge Long, heretofore referred to.

Lovingood testified that he handled the money derived from the sale of the land as guardian for Clyde Watson and Albert Watson. He said: “The residue that belonged to these boys, I took back from the clerk what was left, and I qualified as guardian and paid these boys from time to time, except at different times when they would have to have this thing and another thing, books, clothes and shoes, and after they became 21 years of age they came and I paid them in full. The money came from land I sold as commissioner. . . . They understood it was the money and part of their estate. They got the same amount of money the other heirs got.” The guardian further testified that he settled with one of the boys in May, 1922, and with the other one in January, 1927. Albert Watson, one of the plaintiffs, testified that he did not sign the consent judgment, but that he knew “Mr. Lovingood as commissioner had sold part of the land. I knew he was my guardian. I made a settlement with him as guardian. He paid out some expense for me and paid over some amounts to me. I knew this was the money that he got out of the sale as commissioner of some of the lands. I am 29 years old.” Clyde Watson, the other plaintiff, testified that he was 30 years old and did not sign the consent judgment. He further testified: “I knew a suit had been brought to set aside both deeds to all the lands to my mother, my brother and myself. ... I knew Mr. Sam Lovingood was appointed commissioner to sell it, and I got my part of the money, and I knew he paid me for my part of that land. I accepted it. When I became 21 I knew when he settled on the final account and he and I agreed on that.” Mr. M. W. Bell testified that he was attorney for the defendants in the present suit, who were the plaintiffs in the former suit, and that Eliza Watson was duly appointed guardian ad litem for Clyde Watson and Albert Watson, and that as such she accepted service on 20 November, 1919, and that she filed an individual answer in the cause, and that the plaintiffs in this suit were about 17 and 18 years of age respectively.

*8Tbe following issues were submitted to tbe jury:

1. “Are tbe plaintiffs tbe sole owners of tbe land sued for in tbis action ?”

2. “If not, are tbey tenants in common witb tbe other beirs at law of J. M. Watson, deceased?”

3. “Wbat interest bave tbe plaintiffs in tbe land sued for?”

Tbe trial judge instructed tbe jury to answer tbe first issue “No,” tbe second issue “Yes,” and tbe third issue “two-thirteenths.”

From judgment upon tbe verdict, tbe plaintiff appealed.

J. D. Mallonee for plaintiffs.

Gray & Christopher for defendants.

BhogdeN, J.

It was admitted by counsel in tbe trial of the case at bar that tbe plaintiffs are tbe owners of tbe lands in dispute unless “tbey bave been divested of said title by reason of a certain judgment in another action.” Tbe action referred to was instituted by tbe defendants in this suit, who are tbe children of tbe first marriage, against tbe children of tbe second marriage alleging that tbe deed made by the deceased J. M. Watson to tbe widow and children of tbe second marriage was secured by tbe exercise of dominating influence upon an old man by tbe second wife. A purported consent judgment was entered by Judge Long in 1919, decreeing that tbe parties were tenants in common as to certain land, and further ordering other portions of land to be sold by Lovingood, tbe commissioner appointed for such purpose. Tbe plaintiffs in this action were minors át that time. Tbe plaintiff, Clyde Watson, became of age on 14 June, 1922, and tbe plaintiff, Albert Watson, became of age on 30 July, 1923. After tbey became of age tbey received from Lovingood tbe net proceeds of tbe land sold, remaining in bis bands as guardian. Tbey testified at tbe trial that tbey knew tbe source from which tbe money was derived and accepted it. Notwithstanding, tbis suit to set aside tbe consent judgment was not instated until 1929. Tbe evidence disclosed that tbe mother, Eliza Watson, was appointed guardian ad litem,, and that she accepted service of summons and filed an answer. While tbe evidence is not satisfactory, doubtless due to tbe fact that tbe courthouse was burned, tbe fact remains that tbe plaintiffs, when tbey became of age, accepted proceeds derived from a sale of land by virtue of tbe decree which tbey now attempt to set aside. Moreover, tbe money was received and accepted witb full knowledge of all tbe vital facts. Tbis fact-status invokes tbe application of tbe principle declared in Williams v. Williams, 196 N. C., 675, 146 S. E., 716, which was stated by Stacy, C. J., as follows: “Tbe defend*9ant, after reaching his majority and with full knowledge of all the facts, accepted $360 for his one-sixth interest in the lands of Robert Williams, deceased. This was a ratification of the sale previously made, and the Court will not now permit him to upset the proceeding by motion in the present cause filed more than four years after such ratification.” See, also, Smith v. Gray, 116 N. C., 311, 21 S. E., 200.

No error.