The opinion
BeogdeN, J.
This action is brought under authority prescribed in C. S., 3206. The statute was discussed in
Waddill v. Masten, 172
N. C., 582, 90 S. E., 694 , in which case it was written: “Suits in protection
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of the rights and interests of the county, on the part of citizens and taxpayers, have been frequently entertained by the courts in this State, and, while they have usually been of an inhibitive character, as in re
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straint of incurring an unlawful indebtedness of levying unlawful taxes, etc., the same principles, in proper cases, will uphold recoveries for money wrongfully disposed of or withheld from the counties, on averment that the proper officials have corruptly or negligently refused to perform their duties in the matter.” See
Tyrrell County v. Holloway,
182 N. C., 64 , 108 S. E., 337 . The defendants, however, assert that even if it be conceded that the plaintiffs as taxpayers are authorized to institute the action that it appears upon the face of the complaint that all questions in controversy were settled by the consent judgment referred to in the complaint, and that such consent judgment constitutes an estoppel and perpetual bar to the maintenance of the suit.
It is settled beyond controversy in this State that a consent judgment is the contract of the parties spread upon the records with the approval and sanction of a court of competent jurisdiction, and that such contract cannot be modified or vacated without the consent of all parties thereto except for fraud or mistake, and that in order to vacate such judgment, an independent action must be instituted.
Morris v. Patterson,
180 N. C., 484 , 105 S. E., 25 ;
Board of Education v. Commissioners,
192 N. C., 274 , 134 S. E., 852 .
Omitting any discussion of the power of the clerk to enter a consent judgment in a cause duly pending before a referee, the inquiry is narrowed to the bare question as to whether fraud was sufficiently alleged. It is now a truism that a demurrer admits all facts properly alleged. Moreover, the law requires that if fraud be relied upon, all essential facts and elements constituting the fraud must affirmatively appear from the pleadings.
Hoggard v. Brown,
192 N. C., 494 , 135 S. E., 331 ;
Hawkins v. Carter,
196 N. C., 538 , 146 S. E., 231 .
The complaint paints substantially the following picture: The sheriff of the county is in arrears and defaults in a large sum of money, aggregating approximately $70,000. Demand is made upon him by the proper authorities for a settlement. In recognition of the demand, he executes notes for $50,000 payable to the county, and secures the same by a deed of trust upon eleven parcels of land owned by him. Nothing more is done or said until the notes fall due, when for the first time the official alleged to be in default, institutes an action to restrain the sale of the property, asserting that the claims of the county are incorrect. In this action a referee is duly appointed to hear the matter, to find the facts and state the account. The referee enters upon the discharge of his duties and the county offers its evidence and rests its case. Thereupon the defendant requests a continuance. In the meantime a new board of commissioners come into power and after remaining in office two days, and without consulting counsel or seeking to acquire any facts or to
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otherwise inform themselves of the status of the matter, they approach the defaulting official with a proposition to cancel the deed of trust, to surrender the claim, and to pay one-half the cost and expense.
Such a picture may be lurid and may be stamped to pieces by evidence offered at the trial, but upon demurrer this Court must assume that the picture is correctly painted. Consequently the Court is of the opinion that the trial judge correctly overruled the demurrer.
Affirmed.