Brown v. Owens

111 S.E.2d 705 (1959) 251 N.C. 348

Alma S. BROWN
v.
R. G. OWENS and A. G. Maness.

No. 525.

Supreme Court of North Carolina.

December 2, 1959.

Don Davis and Ottway Burton, Asheboro, for plaintiff, appellant.

Miller & Beck, Asheboro, for defendants, appellees.

BOBBITT, Justice.

Plaintiff may not attack by independent action the judgment of November 25, 1957, entered in said separate civil action, on the ground that its validity is dependent upon her consent and she did not consent thereto. The said judgment may be attacked on this ground only by motion in the cause.

"While it is a settled principle of law in this jurisdiction that a consent judgment cannot be modified or set aside without the consent of the parties thereto, except for fraud or mutual mistake, and the proper procedure to vacate such judgment is by an independent action; it is equally well settled that 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." King v. King, 225 N.C. 639, 35 S.E.2d 893, 894, and cases cited.

The said judgment of November 25, 1957, is regular on its face. If void in fact, plaintiff's remedy is by motion in the cause. Monroe v. Niven, 221 N.C. 362, 20 S.E.2d 311, and cases cited; Henderson v. Henderson, 232 N.C. 1, 10, 59 S.E.2d 227.

Notice is taken of the fact that the $2,000 note, on which the judgment of November 25, 1957, was based, was not, according to plaintiff's allegations, secured by a balance purchase price mortgage or deed of trust. Hence, G.S. § 45-21.38 has no application. Brown v. Kirkpatrick, 217 N.C. 486, 8 S.E.2d 601. We perceive no reason why a seller of real estate may not require, in lieu of cash, that the purchaser assure payment of the deferred portion of the purchase price, in whole or in part, by giving a note therefor, with endorsers, rather than by giving a balance purchase price note, with mortgage or deed of trust on the property as security therefor.

Affirmed.