Yarborough v. Yarborough , 27 N.C. App. 100 ( 1975 )

218 S.E.2d 411 (1975) 27 N.C. App. 100

Celia E. YARBOROUGH
v.
Wilson F. YARBOROUGH, Jr.

No. 7512DC382.

Court of Appeals of North Carolina.

October 1, 1975. Certiorari Denied December 2, 1975.

Hatch, Little, Bunn, Jones, Few & Berry by T. D. Bunn, Raleigh, and Edgar R. Bain, Lillington, for plaintiff appellant.

Nance, Collier, Singleton, Kirkman & Herndon by James R. Nance, Fayetteville, for defendant appellee.

Certiorari Denied by Supreme Court December 2, 1975.

HEDRICK, Judge.

We find at the outset that plaintiff is not estopped to bring the present action by anything she has done. "Estoppel by misrepresentation or equitable estoppel. . . grows out of such conduct of a party as absolutely precludes him, both at law and in equity, from asserting rights which might perhaps have otherwise existed. . . as against another person who in good faith relied upon such conduct, and has been led thereby to change his position for the worse . . . ." Boddie v. Bond, 154 N.C. 359, 365, 70 S.E. 824, 826 (1911). "[A] party who, with knowledge of the facts, accepts the benefits of a transaction, may not thereafter attack the validity of the transaction to the detriment of other parties who relied thereon, (footnote omitted)" 3 Strong N.C. Index 2d, Estoppel, § 4, pp. 583-584. See also, Smith v. Smith, 265 N.C. 18, 143 S.E.2d 330 (1965); White v. Moore, 11 N.C.App. 534, 181 S.E.2d 734 (1971). In the present case there is nothing to indicate that the defendant has relied on anything that the plaintiff has or has not done which has in any way acted to his loss or detriment.

In Ballard v. Hunter, 12 N.C.App. 613, 184 S.E.2d 423 (1971), cert. denied 280 N.C. 180, 185 S.E.2d 704 (1972), Chief Judge Mallard quoting from 2 McIntosh, N.C. Practice and Procedure 2d, § 1684, said:

"``A confession of judgment without action is a consent judgment * * * The judgment depends upon the consent of the parties, and the court gives effect to it as the agreement of the parties. It would not be valid unless the parties consented, nor could it affect one who was not a party.' (Emphasis added.)"

In 49 C.J.S. Judgments § 148, p. 275, it is stated:

"In order that a confession of judgment may be binding on the plaintiff, it is essential that he, either expressly or impliedly, assent thereto. (footnote omitted)"

Thus, the question for us to determine is whether the plaintiff's conduct after she received notice of the entry of judgment of confession manifested her intention to consent to it.

It seems obvious that no person can confess judgment for an amount not agreed to be owing and bind the other party to that confession absent his consent. In the present case, the purported confession of judgment imposes upon the plaintiff substantial conditions and purports to make certain a liability that in no way was agreed to be the amount due. We need not discuss at length the finding that plaintiff had ratified the prior judgment by accepting benefits under it. There is nothing in the record to indicate whether she accepted those benefits under the judgment or whether she was merely enjoying the support she would rightfully be entitled to as a dependent spouse even if there had never been a confession of judgment. Plaintiff cannot be said to have ratified the confession of judgment by accepting benefits which she believed she would have been entitled to under any circumstances.

Counsel for the defendant argues and the court below found that plaintiff had ratified the agreement by filing a motion in the cause in the prior action. But, an examination of that motion reveals that she in no way agreed to be bound by the confession of judgment. In fact, the motion clearly shows that she did not agree to be bound. Furthermore, the very fact that plaintiff filed the present action just one month after the entry of the judgment by confession demonstrates clearly that she had no intention of consenting to the unilateral action of her husband. The record before us, rather than implying that plaintiff consented to the judgment, demonstrates her repudiation of it.

While we recognize that judgment may be confessed in alimony cases pursuant to G.S. 1A-1, Rule 68.1, and such a procedure may be desirable in many cases to avoid the public airing of domestic problems, we do not perceive that such procedure should be used to deprive a litigant of his or her day in court, or to impress on an unsuspecting party terms and conditions to which the party did not specifically agree. Because the plaintiff in the present case did not expressly or impliedly consent to the judgment confessed in case #74CVS4313, we hold that such judgment is a nullity. The order dismissing plaintiff's claim in case #74CVD4952 is reversed and cause is remanded to the district court for further proceedings.

Reversed and remanded.

BRITT and MARTIN, JJ., concur.