Yancey v. Yancey
55 S.E.2d 468
N.C.
1949
Check Treatment
Devin, J.

Plаintiff and defendant are husband and wife. In the complaint it was alleged that in October, 1937, land was purchаsed with the joint earnings and savings of both with the agreement that title to the land should be taken in the names оf both, but that the defendant, who handled the closing of the negotiations for the purchase of the land, in violation of the agreement, had deed made to herself alone; that upon discovery of this fact in October, 1947, plaintiff instituted suit to establish a resulting trust and to have her decreed trustee for his benefit as to óne-half interest in the land; that after filing his complaint in that action, upon the defendant’s oral promise to make him a deed for his interest in the land, plaintiff in November, 1947, had judgment entered “that the matters and things in controversy have been settled between the parties,” and that therefore it was “аdjudged and decreed that plaintiff be non-suited.” The defendant having failed and refused to make the сonveyance as promised, the plaintiff in February, 1948, instituted this action for substantially the same causе as that in which the judgment had been entered, that is, to enforce a resulting or constructive trust and to have the defendant declared trustee ex maleficio for his benefit as to one-half interest in the land. The dealings bеtween the parties in respect to this land, and the circumstances under which plaintiff alleges the deeds were made, are set out at length in the complaint.

The defendant answered denying the material allegations of the complaint, and setting up the judgment of November, 1947, referred to in the сomplaint, as an ‍‌‌‌​​​​​‌‌‌​‌​​‌​​​‌‌​‌​​​‌‌‌​‌‌‌​‌‌‌‌​‌​​​​​​‌‌‍estoppel by judgment, and a bar to plaintiff’s action. The court below was of that opinion, and rendered judgment on the pleadings dismissing the action.

The plaintiff has elected to treat the judgment rendered in November, 1947, as merely a voluntary nonsuit, and has within a year brought a *721 new action for substantially the same equitable cause of action. Based upon this premise, his positiоn is undoubtedly correct that the court would not be warranted in dismissing his present action as res judicata without finding adequate facts. Batson v. Laundry Co., 206 N.C. 371, 174 S.E. 90; Hampton v. Spinning Co., 198 N.C. 235, 151 S.E. 266. But we think the judgment wаs more than a nonsuit, and that ‍‌‌‌​​​​​‌‌‌​‌​​‌​​​‌‌​‌​​​‌‌‌​‌‌‌​‌‌‌‌​‌​​​​​​‌‌‍on its face and in its legal effect it amounted to a retraxit. Steele v. Beaty, 215 N.C. 680, 2 S.E. 2d 854; Grimes v. Andrews, 170 N.C. 515, 87 S.E. 341; Idding v. Hiatt, 51 N.C. 402. It was a complete withdrawal of plaintiff’s suit. The judgment declared that it had been made to appear to thе court by the plaintiff that the matters and things in controversy had been ■“settled,” and thereupon it was adjudged that the plaintiff be ncinsuited. The word “settle” means “to place in a fixed or permanent condition; to determine” ("Webster). And the word being used in connection with litigation must be understood as signifying that the controversy had been adjusted and brought to an end. Nothing else appearing, it indicated a determinаtion on its merits. It constituted formal acknowledgment in open court that the plaintiff had no further cаuse of action. It was said by Justice Barnhill, speaking for the Court in Steele v. Beaty, 215 N.C. 680, 2 S.E. 2d 854, “A judgment in retraxit is usually based upon and follows a settlement out of court. Where the рarties to an action have settled their dispute and agreed to a dismissal such dismissal is a retraxit and amounts to a decision upon the merits (citing authorities). The rule seems to be universal that a judgment of dismissal еntered by agreement of the parties pursuant to a compromise and settlement of the сontroversy is a judgment on the merits ‍‌‌‌​​​​​‌‌‌​‌​​‌​​​‌‌​‌​​​‌‌‌​‌‌‌​‌‌‌‌​‌​​​​​​‌‌‍barring any other action for the same cause.” A judgment entered рursuant to and reciting a settlement of the matters in controversy between the parties is generally regarded as a determination of the cause on its merits. 2 A.L.E. (2) 567 (note).

The plaintiff admits that he had the judgmеnt of November, 1947, entered as it appears of record, but that the inducement or considerаtion therefor was the oral promise of the defendant to convey to him a half interest in the lаnd, and that defendant afterwards failed and refused to do so. He does not allege fraud. He has nоt attacked the judgment or •sought to vacate it. Hence standing upon the docket it is a judgment of retraxit, and it bars a new action. Before he can prosecute another action for the samе cause he must in some proper way remove this judgment from his pathway. Moody v. Wike, 170 N.C. 541, 87 S.E. 350; Fowler v. Fowler, 190 N.C. 536, 130 S.E. 315; McIntosh Prac. & Pro. 745. A mere allegation in the new action that the judgment was entered in reliance upon an oral promise which was afterwards breached would not be ‍‌‌‌​​​​​‌‌‌​‌​​‌​​​‌‌​‌​​​‌‌‌​‌‌‌​‌‌‌‌​‌​​​​​​‌‌‍sufficient to constitute a direct proceeding to set aside the judgment for extrinsic fraud or other equitable cause collateral to the proceeding. *722 Horne v. Edwards, 215 N.C. 622, 3 S.E. 2d 1; McCoy v. Justice, 199 N.C. 602, 155 S.E. 452; U. S. v. Throckmorton, 98 U.S. 61. Nor would plaintiff’s position be strengthened by the fact that the oral promise to convey land, when denied or the statute of frauds pleaded, might be unenforceable and insufficient to constitute valid consideration. Craig v. Price, 210 N.C. 739, 188 S.E. 321. The judgment still stands as a voluntary withdrawal of his suit and in effect a retraxit, and constitutes a bar to his present action.

The defendant’s demurrer on thе ground that plaintiff husband could not in any event maintain an action ‍‌‌‌​​​​​‌‌‌​‌​​‌​​​‌‌​‌​​​‌‌‌​‌‌‌​‌‌‌‌​‌​​​​​​‌‌‍against his wife for the causes set оut in his complaint was overruled, and defendant did not appeal. Carlisle v. Carlisle, 225 N.C. 462, 35 S.E. 2d 418. Hence the only question presented by plaintiff’s appeal is the validity of the judgment on the pleadings.

On the record and for the reasons herein set out, we conclude that the judgment should be

Affirmed.