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  "name_abbreviation": "Overton v. Overton",
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      "DOROTHY ISABELLA OVERTON, Widow, Petitioner v. ANNABELLE OVERTON, non compos mentis, JENNETTE OVERTON, FREDERICK OVERTON, SYLVIA LEE OVERTON, minors, and ELIJAH CHERRY, Trustee and Executor of the Estate of ANTHONY ASHLEY OVERTON, Deceased, Respondents."
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        "text": "Moore, J.\nAnthony Ashley Overton and Dorothy Isabella White were married in 1929 in the State of New York. Without having obtained a divorce, Overton entered into a marriage ceremony with Annabelle Hollowell in 1938 in Camden County, North Carolina. He and Annabelle lived together in North Carolina and three children, Sylvia, Frederick and Jennette Overton, were bom to them. Anthony died testate on 12 November 1958. His will was admitted to probate on 17 November 1958 in Pasquotank County. His estate was devised \u2022and bequeathed to Annabelle, Sylvia, Frederick and Jennette, and the will refers to Annabelle as his wife and Sylvia, Frederick and Jennette as his children. Elijah Cherry was named executor and trustee and qualified as such.\nDorothy filed a dissent to the will on 22 May 1959, six months and five days -after the will was admitted to probate. She instituted a special proceeding on 5 September 1959 for allotment of year\u2019s allowance and dower. Frederick and Jennette were minors and Gerald F. White was appointed guardian ad litem for them. The clerk of the superior court found as a fact that Annabelle was non compos mentis and appointed Ray Etheridge guardian ad litem for her.\nElijah Cherry, executor and trustee, and Sylvia filed a joint answer. Gerald F. White and Ray Etheridge, guardians ad litem, each filed answer. All of the answers denied the material allegations of the petition generally, and denied that Dorothy was the widow of testator.\nA consent judgment was entered by the clerk on 1 November 1960 and was approved by Morris, Resident Judge. The consent judgment provided for payment of |5500 and costs to petitioner in lieu of year\u2019s support, dower and all other claims of petitioner against the estate. The judgment was signed, indicating consent, by attorneys for petitioner, attorneys for executor-trustee and Sylvia, Elijah Cherry, executor-trustee, Ray Etheridge and Gerald E. White, guardians ad litem.\nThereafter Annabelle moved to set aside the consent judgment, alleging that she was not insane and had not consented to the judgment or authorized anyone to consent for her. The motion was heard by Judge Morris, who found as a fact that Annabelle had been an inmate of the State Hospital for the Insane at Goldsboro for a number of years but had been released and discharged five months before the consent judgment was entered, and bad not consented to the entry of the judgment or authorized anyone to consent for her. The judge made a<n order decreeing that \u201cas to the movant Annabelle Overton . . . the judgment ... is null and void and of no effect,\u201d and allowing her to answer. Annabelle\u2019s answer consists of a denial that Dorothy is widow of testator, and a general denial of other material allegations.\nThe proceeding came on for trial before Judge Bundy. One issue was submitted to .and answered by the jury as follows: \u201cIs Dorothy Isabella Overton the widow of Anthony Ashley Overton, as set forth in her petition? Answer: Yes.\u201d Before verdict respondents moved to be permitted, as a matter of right and also in the court\u2019s discretion, to amend the answers and plead the six months statute of limitations, G.S. 30-1. The motion was denied. After verdict, respondents renewed this motion and also moved for judgment notwithstanding the verdict. The motions were denied.\nAll parties agreed that judgment might be signed out of term and out of the county. Judgment was signed in Camden County, ruling that petitioner was not entitled to a year\u2019s allowance or dower, decreeing that \u201cpetitioner take nothing by her proceeding,\u201d and dismissing the petition. Petitioner appeals.\nPetitioner assigns as error the following conclusions of law upon which the judgment was based:\n\u201c1. Dissent to the will of the testator is a condition precedent to allotment of the widow\u2019s year\u2019s allowance provided for in G.S. 30-15 since such allowance is -a statutory right and she must comply with the statute. PERKINS v. BRINKLEY, 133 N.C. 86, 45 S.E. 465. The petitioner, not having complied with the statute as to dissent, G.S. 30-1, is not entitled to the widow\u2019s year\u2019s allowance.\n\u201c2. While a statute of limitations is a positive defense and must be pleaded, when it has been properly pleaded, the burden is upon the plaintiff to show that his claim is not barred, and not upon the defendant to show that it is barred, EXCEPT WHERE THE STATUTE IS RELIED UPON TO GIVE TITLE, AS IN AN ACTION FOR LAND, WHERIN THE DEFENDANT MUST MAKE GOOD HIS TITLE TO DEFEAT PLAINTIFF\u2019S TITLE WHEN PROVED (emphasis added.) McIntosh North Carolina P & P, Section 372.\n\u201c \u2018Defendants were at liberty to establish their title to the land in controversy without having to plea the source or manner in which they acquired title.\u2019 BUMGARNER v. CORPENING, 246 N.C. 40.\n\u201cThe petitioner \u2018had no right to dissent after the lapse of six months after the probate\u2019 of the will. PERKINS v. BRINKLEY, et al, supra. As to dower in the lands described in the petition, the petitioner has acquiesced for six months to the will of the man found by the jury to be her husband. While G.S. 30-1 is a statute of limitations and dower a common law right of property, she must comply with the statute and, not having done so, the Court rules .-as .a matter of law that she is not entitled to dower.\n\u201cIt is thereupon ordered, adjudged and decreed that petitioner take nothing by her proceeding, that this petition be dismissed.\u201d\nG.S. 30-1, as phrased prior to the 1961 revision, states that \u201cEvery widow may dissent from her husband\u2019s will before the clerk of the superior court of the county in which such will is proved, at any time within six months after the probate.\u201d This is a statute of limitations. Dissent within six months is not a condition precedent to' the right of a widow, whose husband dies testate, to dower. Failure to dissent within the time specified does not extinguish the right, it simply bars the action therefor. Trust Co. v. Willis, 257 N.C. 59, 125 S.E. 2d 359; Whitted v. Wade, 247 N.C. 81, 100 S.E. 2d 263; Hinton v. Hinton, 61 N.C. 410.\nIt is argued that dower is a common law right and even if G.S. 30-1 is not a condition precedent to the right of dower as to testate property, dissent within six months is a condition precedent to a widow\u2019s right to a year\u2019s support from such property, by judicial interpretation and the language of G.S. 30-15. It is true that the right of a widow to a year's support is purely statutory. Broadnax v. Broadnax, 160 N.C. 432, 76 S.E. 216. And G.S. 30-15 (as it existed prior to its revision in 3961) confers the right on \u201cevery widow of an intestate, or of a testate from whose will she has dissented.\u201d It is stated in Perkins v. Brinkley, 133 N.C. 86, 45 S.E. 465, in which allotment of a year\u2019s allowance was involved, that the widow \u201chad no right to dissent after the lapse of \u2018six months after the probate\u2019 of the will.\u201d See also Jones v. Callahan, 242 N.C. 566, 570, 89 S.E. 2d 111. Appellees construe the statement in Perkins as a ruling that dissent within six months is a condition precedent to the right to a year\u2019s support. But the time of dissent was not in question in either the Perkins or the Jones case. In neither of those cases had there been a dissent from the will at any time before proceedings for the allowance were instituted. We perceive no real distinction between the purport of the language of G.S. 30-15 and the principles applied to dower as to testate property. G.S. 30-1 confers no right of dower or year\u2019s support; these rights exist independently. G.S. 30-1 merely limits the time within which the rights may be asserted. The time element in the dissent statute is a statute of limitations with respect to both rights.\n\u201cUnder the present code, the objection that the claim is barred by the statute can be taken only by answer; and even when it appears from the face of the complaint that the claim is barred, objection cannot be made by demurrer, nor by motion to dismiss because the complaint does not state a cause of action. In possessory actions which involve the title to land, it is not necessary to plead the statute specially, but objection may be taken under a general denial, since the statute in such cases confers a title, and does not simply bar the remedy.\u201d 1 McIntosh, North Carolina Practice and Procedure (2d Ed.), s. 371, p. 210. The court below seems to have relied upon the last sentence in this quotation from McIntosh, illustrated by the holding in Bumgarner v. Corpening, 246 N.C. 40, 97 S.E. 2d 427. It is not apposite. The Bumgarner case involves a dispute over land boundaries, and defendants therein claimed title to the disputed area by virtue of adverse possession under color of title. In the instant case respondents\u2019 title is not in question.\nThe objection that an action was not commenced within the time limited can only be taken by answer. G.S. 1-15. Unless a statute of limitations is annexed to the cause of action itself, the bar of limitation must be affirmatively pleaded in order to be available as a defense. Elliott v. Goss, 250 N.C. 185, 108 S.E. 2d 475; Stamey v. Membership Corp., 249 N.C. 90, 96, 105 S.E. 2d 282; Reid v. Holden, 242 N.C. 408, 88 S.E. 2d 125.\nThe petition alleges that petitioner, \u201cin apt time and in proper manner, filed her dissent from said will.\u201d In the answers this allegation \u201cis denied.\u201d Respondents contend that the denials .amount to an affirmative pleading of the statute. We do not agree. \u201cIt is an established principle of pleading that the plaintiff need not in his pleading anticipate or negative possible defenses. . . .\u201d 34 Am. Jur., Limitation of Actions, s. 424, p. 335. It is the majority view that \u201cThe bar of the statute of limitations is an .\u2019affirmative defense and cannot be availed of by a party who fails, dn due time and proper form, to invoke its protection. As a general rule, unless the facts that raise the bar of the statute appear to be admitted or the fact that a cause of action is barred appears upon the face of the complaint, ... it is necessary, in order that a defendant may invoke the statute of limitations as a defense, that he plead the statute specially . . .; if he fails to do so, the defense is not available, for it is deemed waived, and the plaintiff may recover as in other oases, notwithstanding the statute has run. Ordinarily tire defense of the statute may not be raised under a plea of the general issue.\u201d ibid, s. 428, pp. 337-8. This rule is somewhat more favorable to respondents than the holdings in this jurisdiction (see the quotation from McIntosh in the second paragraph next above), and even under this general rule respondents\u2019 .answers do not qualify as affirmative pleas in bar. Petitioner\u2019s allegation that she had \u201cin apt time and in proper manner, filed her dissent\u201d is not an admission of the facts that raise the bar of the statute, but is to the contrary; and the fact that the proceeding is barred does not appear upon the face of the complaint. If the filing of dissent within six months were a condition precedent to the institution and maintenance of the proceeding, which it is not, proof by petitioner upon trial that dissent was filed six months and five days after probate of the will would require dismissal of the action. But since there was no affirmative plea in 'bar, such proof does not justify dismissal. Furthermore, petitioner\u2019s allegation is a mere conclusion of the pleader, and respondents\u2019 general denial of the conclusion is not affirmative pleading. \u201cThe plea of the statute is ineffectual in the absence of factual allegation showing the lapse of time between the date the cause of action accrued and the date on which the case of action was instituted.\u201d 3 Strong: N. C. Index, Limitation of Actions, s. 16, p. 154; Janicki v. Lorek, 255 N.C. 53, 120 S.E. 2d 413; Allen v. Seay, 248 N.C. 321, 103 S.E. 2d 332; Jennings v. Morehead City, 226 N.C. 606, 39 S.E. 2d 610.\nThe courts will not deem the statute of limitations pleaded in behalf of minors in the absence of an actual plea thereof by the guardian ad litem appointed to represent them. \u201cApparently, the only case in which the objection may be taken when not pleaded is the case of an insane person where the statute provides that he shall be given the benefit of all defenses, whether pleaded or not, and this includes the statute of limitations.\u201d 1 McIntosh, North Carolina Practice and Procedure (2d Ed.) s. 374, p. 231. See G.S. 1-16.\nThe judgment below is vacated, and the cause is remanded that judgment be entered in accordance with the verdict and this opinion. When judgment is accordingly entered, respondents may appeal therefrom if so advised.\nOne thing more. Judge Morris set aside the consent judgment for cause \u2014 lack of consent by Annabelle. The order purported to set the judgment aside only as to Annabelle. Petitioner contends that it is valid and binding as to the other consenting parties. But this is not the correct interpretation of the law. \u201cWhere parties solemnly consent that a certain judgment shall 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 a finding of the court, that it was obtained by fraud or mutual mistake, or that consent was not in fact given. . . .\u201d Gardiner v. May, 172 N.C. 192, 89 S.E. 955; Boucher v. Trust Co., 211 N.C. 377, 190 S.E. 226. \u201cThe power of the court to sign a consent judgment depends upon the unqualified consent of the parties thereto, and the judgment is void if such consent does not exist at the time the court sanctions or approves the agreement of the parties and promulgates it as a judgment.\u201d Ledford v. Ledford, 229 N.C. 373, 49 S.E. 2d 794; King v. King, 225 N.C. 639, 35 S.E. 2d 893. A consent judgment rendered without the consent of a party will be held inoperative in its entirety. Lynch v. Loftin, 153 N.C. 270, 69 S.E. 143. When a party to an action denies that he gave his consent to the judgment as entered, the proper procedure is by motion in the cause. And when the question is raised, the court, upon motion, will determine the question. The findings of fact made by the trial judge in making such determination, where there is some supporting evidence, are final and binding on this Court. Ledford v. Ledford, supra. When a purported consent judgment is void for want of consent of one of the parties, such party is not required to show a meri-torius defense in order to vacate the void judgment. Owens v. Voncannon, 251 N.C. 351, 111 S.E. 2d 700. \u201cIt is a general rule that in a case where a consent judgment may be set aside for cause, it must be set aside in its entirety.\u201d 30A Am. Jur., Judgments, s. 639, p. 612; 139 A.L.R. 421, 443; Walker v. Walker, 185 N.C. 380 117 S.E. 167; Edwards v. Sutton, 185 N.C. 102, 116 S.E. 163. The court has the power to set aside a consent judgment, as a whole, but not to eliminate from it that part which affects some of the parties only. The agreements of the parties are reciprocal, and each is the consideration for the other. If that which affects one party is taken out, what is left is not what was agreed to by the others. Bank v. McEwen, 160 N.C. 414, 76 S.E. 222, Ann. Cas. 191 4c 542. Respondents .are entitled to an order setting aside the consent judgment in its entirety.\nError and remanded.",
        "type": "majority",
        "author": "Moore, J."
      }
    ],
    "attorneys": [
      "J. Kenyon Wilson, Jr., and Killian Barwick for petitioner appellant.",
      "Frank B. Aycock, Jr., and W. C. Morse, Jr., for respondents, appel-lees."
    ],
    "corrections": "",
    "head_matter": "DOROTHY ISABELLA OVERTON, Widow, Petitioner v. ANNABELLE OVERTON, non compos mentis, JENNETTE OVERTON, FREDERICK OVERTON, SYLVIA LEE OVERTON, minors, and ELIJAH CHERRY, Trustee and Executor of the Estate of ANTHONY ASHLEY OVERTON, Deceased, Respondents.\n(Filed 6 March 1963.)\n1. AVills \u00a7 60; Dower \u00a7 4; Executors and Administrators \u00a7 23\u2014\nG.S. 31-1, prescribing (that a widow may dissent from the will of her husband at any time within six months after probate is a statute of limitations and not a condition precedent annexed to \u00a1the remedy, both with regard to the widow\u2019s statutory right to a year\u2019s support, G.S. 30-15, and to the widow\u2019s right to dower as to testate property, G.S. 30-1, and therefore the six months\u2019 limitation must be pleaded in the same manner as is required for the pleading of any other statute of limitations.\n2. Limitation of Actions \u00a7 16\u2014\nUnless a statutory limitation is a condition precedent annexed to the cause of action itself, the bar of the statute must be affirmatively pleaded by answer.\n3. Same\u2014\nMere denial, in the answer, of plaintiff\u2019s allegations that she had instituted claim in apt time and in the proper manner is not a sufficient plea of the applicable statute of limitations, certainly when it does not affirmatively appear from plaintiff\u2019s pleadings that the claim was not instituted within the time allowed, but defendant is required to set up the affirmative defense of the statute, not merely by pleading the legal conclusion that plaintiff\u2019s claim is barred, but by alleging facts disclosing the lapse of time in excess of the statutory limitation between the date the cause accrued and the date the claim or action was instituted.\n4. Same; Infants \u00a7 1\u2014\nThe court will not deem the statute of limitations pleaded in behalf of minors when their duly appointed guardian ad litem has not entered such plea.\n5- Judgments \u00a7 8\u2014\nThe power of the court to sign a consent judgment is based upon the unqualified consent of the parties, and the judgment is void if the parties do not consent thereto ait the time the court promulgates it as a consent judgment.\n6. Judgments \u00a7 25\u2014\nThe proper procedure to attack a consent judgment on the ground that a party thereto did not give his consent to the judgment as entered is by motion in the cause, and the court\u2019s findings of fact in regard thereto are conclusive when, the findings are supported by any competent evidence.\n7. Same\u2014\nThe agreements of the parties >to a. consent judgment are reciprocal, and therefore when the judgment is void as to one of the parties because of the want of his consent at the time the judgment was entered, it is error for 'the court to eliminate from the judgment only that part which affects that party alone, since what is left is not what was agreed ,to by the other parties, and therefore the judgment must be set aside in its entirety.\nAppeal by petitioner from Bundy, J., September 1962 Term o\u00ed Pas-QTJOTANK.\nSpecial proceeding for allotment of widow\u2019s year\u2019s .allowance and dower.\nJ. Kenyon Wilson, Jr., and Killian Barwick for petitioner appellant.\nFrank B. Aycock, Jr., and W. C. Morse, Jr., for respondents, appel-lees."
  },
  "file_name": "0031-01",
  "first_page_order": 75,
  "last_page_order": 82
}