after stating the case: "We will consider the grounds of demurrer in the order stated.
First. The statute of limitations cannot be pleaded in a demurrer, but must be taken advantage of only by answer, by express provision of the statute, Eevisal, sec. 360. In Bacon v. Berry, 85 N. C., 125, the defendant demurred because more than seven years had elapsed since the rendition of the judgment when the suit was commenced, which is identical with the matter pleaded here. The Court held (by Ashe, J.) that “It was, in fact, a plea of the statute of limitations, which must be set up in the answer, it being an objection that can never be taken by demurrer,” citing Green v. R. R., 73 N. C., 524. If the facts are admitted, the court may pass on the question of the bar, as in Ewbank v. Lyman, ante, 505. It was held in Long v. Bank, 81 N. C., at p. 46, *544that even if the statutory bar is apparent on tbe face of the complaint, it could not be pleaded except by answer, and not by demurrer or motion to dismiss. The same was held in Oldham, v. Rieger, 145 N. C., at p. 259, and the reason why such a thing cannot be done is fully stated, in addition to the positive requirement of the statute as the best of reasons, and a demurrer alleging that time had elapsed was in that case characterized as a “speaking demurrer,” that is, one not addressed to the statements of the complaint alone, but calling in aid extraneous facts, which is forbidden by the law of pleading. See, also, Pell’s Revisal, sec. 361, at p. 141, and note, where the numerous cases are collected.
Second. It makes no difference that the alleged fraud was not repeated when the judgment was actually signed, for it is to be taken as having continued from the date of its origin down to that time, and to be then operating upon the party, there being no allegation to the contrary. If it caused the plaintiff’s attorney in that action to sign the judgment, in ignorance of its existence, it matters not when the fraud was committed. Black on Judgments, sec. 321.
Third. "When a cause is closed by a final judgment, a proper remedy is to proceed by an- independent civil action to set it aside if it was procured by fraud. 23 Oyc., 917, 918; Black on Judgments, sec. 368, 370, 371; Rollins v. Henry, 78 N. C., 342; Uzzle v. Vinson, 111 N. C., 138; Sharpe v. R. R., 106 N. C., 308 (19 Am. St. Rep., 533); Syme v. Trice, 96 N. C., 243; Fowler v. Poor, 93 N. C., 466. And this rule applies to judgments by consent, 16 Cyc., 502, and notes; Black on Judgments, sec. 319; Kerchner v. McEachern, 93 N. C., 447; Banks v. McEwen, 160 N. C., 414; Rollins v. Henry and other authorities supra. It was said in McEachern v. Kerchner, 90 N. C., 177, 179 : “If a party to such a judgment complains of it because of inadvertence, mistake, accident, or fraud in the agreement to have it entered of record, he can have redress only by consent of all the parties, or by an action instituted for that purpose, making all proper parties, independent of the action in which such judgment was entered. In such independent action he can allege and set forth such grounds of complaint against such judgment as he may have, and the court can grant such relief as he may be entitled to.”
Whether the plaintiff could, at his election, have proceeded by motion in the cause, even after final judgment entered, we need not discuss, as the remedy by a separate civil action is a proper one. We will direct attention, though, to the cases of Roberts v. Pratt, 152 N. C., 731; Massie v. Hainey, 165 N. C., 174, where the question is fully considered by Justice Holce, and to Banks v. McEwen, 160 N. C., 414. A party can undoubtedly proceed by motion where the fraud is practiced upon the court. Roberts v. Pratt, supra.
*545Fourth. Tbe plaintiff alleges facts which constitute a fraud upon him in procuring the judgment to be signed and entered of record. M. L. ~Wike knew the boundaries of the land which the parties had agreed should be inserted in the judgment, and he, with intent to deceive and mislead his own attorney and thereby to defraud the plaintiff, deliberately and falsely dictated other boundaries and another description to his counsel, so that the judgment would embrace 10 or 12 acres instead of about 2 acres. Fraud has been said to consist in one man’s endeavoring by deception or circumvention to alter the general or particular rights of another. 1 Bigelow on Fraud (Ed. 1890), p. 5. This case falls within the definition, as the defendant’s -ancestor committed an act of deceit for the purpose of -misleading” and circumventing the plaintiff, so that his rights would be altered by his being led to do something different from the agreement of the parties. The demurrer, of course, admits all the facts alleged in the complaint, and our decision is based upon that admission. There was error in sustaining the demurrer.
Reversed.