Carwell v. Worley , 23 N.C. App. 530 ( 1974 )

BRITT, Judge.

Plaintiff’s sole exception is to the signing of the judgment entered on 11 April 1974. The judgment entered on 16 April 1973 was a final judgment with respect to pleadings and materials that had been filed with the court at that time. Since plaintiff did not except to, or appeal from, the 16 April 1973 judgment, the effect of that judgment was to estop plaintiff from challenging its validity based on pleadings and facts that were then before the court. 2 McIntosh, North Carolina Practice and Procedure 2d, § 1731. In McIntosh, supra, § 1732, we find: “The estoppel will apply to all final judgments, however irregular or erroneous they may be, until they are set aside by some proper proceeding; but a void judgment will not operate as an estoppel. ...”

After summary judgment was entered on 16 April 1973 in favor of defendants, with provision that plaintiff might file an amended complaint within twenty days, the only additional document filed or presented by plaintiff was the amended complaint. The only information of substance contained in the amended complaint that was not before the court when it considered defendants’ first motion for summary judgment is as follows:

“That the Defendants came to the Plaintiff and her husband some few weeks prior to April 1, 1971 and advised Plaintiff and her above-named deceased husband that they owned various parcels of real property which the Defendants did not own and made various other statements as to their financial condition, which was false . . . ; and that relying upon the statements of the Defendants, the Plaintiff and her husband executed and conveyed the above described property to the Defendants....”

In Loftin v. Kornegay, 225 N.C. 490, 492, 35 S.E. 2d 607 (1945), the court said: “ . . . A parol agreement in favor of a grantor, entered into at the time of or prior to the execution of a deed, and at variance with the written conveyance is unenforceable in the absence of fraud, mistake or undue influence. ... (Citations).” See also Gaylord v. Gaylord, 150 N.C. 222, 63 S.E. 1028 (1909).

We do not think the quoted allegations from the amended complaint was sufficient to show fraud, mistake or undue influence, a showing that would be necessary to support a cause of action to set aside a warranty deed conveying real estate or to impose a trust thereon. We hold that the judgment entered on 11 April 1974 dismissing the action was proper.

Affirmed.

Judges Campbell and Vaughn concur.