These are tbe decisive questions on this appeal:
1. Where it appears upon tbe face of tbe record that, in a special proceeding for partition of remainder in land subject to life estates, instituted by some of tbe remaindermen, including a married woman and her husband, with whom tbe life tenants join, as petitioners, against tbe other remaindermen, a married woman and her husband, as defendants, no issue of fact as to tbe respective interests of tbe parties being raised by tbe pleading, tbe clerk of Superior Court enters a judgment recited to be “by consent of all parties,” but only signed by counsel for petitioners, naming them, and by counsel for defendants, naming them, adjudging tbe life tenant to be tbe owner in fee simple of tbe land, charged with tbe lien of. specific sums of money payable to or for tbe remaindermen, respectively, payment of which tbe life tenant assumes in consideration of such adjudication, nothing else appearing, is tbe judgment as a matter of law res judicata of tbe rights of tbe remainder-men in and to tbe land?
2. In an action for tbe recovery of land, may estoppel by conduct or in pais be invoked as a matter of defense without special and specific plea?
3. Is tbe grantee in a deed, wbo assumes payment of mortgage on tbe land, estopped to deny tbe validity of the mortgage? If so, may such estoppel be invoked in an action in ejectment without special plea?
We are of opinion that tbe first and third questions, as well as tbe question following tbe latter, are properly answerable in tbe affirmative, but that the second should be answered “No.”
In an action for tbe recovery of land plaintiff must rely upon tbe strength of bis own title, and not upon tbe weakness of that of bis adversary. To recover in such action plaintiff must show title good against tbe world, or good against tbe defendant by estoppel. Plaintiff must *386assume the burden of allegation as well as of proof. Mobley v. Griffin, 104 N. C., 112, 10 S. E., 142; Rumbough v. Sackett, 141 N. C., 495, 54 S. E., 421; Shelly v. Grainger, 204 N. C., 488, 168 S. E., 736; Carson v. Jenkins, 206 N. C., 475, 174 S. E., 271. See, also, Prevatt v. Harrelson, 132 N. C., 250, 43 S. E., 800; Moore v. Miller, 179 N. C., 396, 102 S. E., 627.
A prima facie showing of title may be made by either of several methods. By one of these plaintiff may connect the defendant with a common source of title and show in himself a better title from that source. Mobley v. Griffin, supra.
1. In the present action, it being admitted that both plaintiffs and defendants claim under a common source of title, plaintiffs elect to show in themselves a better title from that source. The controversy in the main involves the question as to the validity of the consent judgment of 26 May, 1928, in the special proceeding for partition of the lands which are the subject of the case in hand.
Defendants assert the validity of that judgment, claim title by virtue of it through mesne conveyances, and plead it as an estoppel in bar of plaintiffs’ right to maintain this action.
On the other hand, plaintiffs deny that they are estopped by the judgment and allege by way of attack that the judgment is void for that the court had no jurisdiction of the matters attempted to be adjudicated and settled therein, particularly, (1) wherein, in the absence of allegation or admission in the pleadings, I. M. Blackmon is declared to be the owner in fee simple of the lands described in the petition, (2) wherein there is an attempt to set aside and cancel the deed from J. M. Blackmon and wife to Rosella B. Keen, Vancy B. Blackmon, and Oza D. Blackmon Smith, theretofore registered, for that not only is there an absence of pleading upon which to base same, but that the clerk of Superior Court is without jurisdiction of the subject matter, and (3) for the further reason, as contended in brief filed here, that evidence of compliance with constitutional and statutory requirements for the conveyance of land by married women does not appear in the judgment roll.
In this connection it is noted that plaintiffs in their attack upon the consent judgment do not rely upon or offer evidence tending to show fraud or mistake, nor do they allege or offer evidence tending to show that the attorneys, who consented thereto, were not in fact authorized to act “by consent of all the parties” as therein recited. Hence, the force of plaintiffs’ attack is directed to matters appearing upon the face of the judgment roll and judgment, that is, is the judgment in the light of the pleadings void as a matter of law? We do not think so.
It is a settled principle of law in this State that a consent judgment is the contract of the parties entered upon the records with the approval *387and sanction of a court of competent jurisdiction, and that such contracts cannot be modified or set aside without the consent of the parties thereto, except for fraud or mistake, and that in order to vacate such judgment an independent action must be instituted. Weaver v. Hampton, 201 N. C., 798, 161 S. E., 480; Wilcox v. Wilcox, 36 N. C., 36; Edney v. Edney, 81 N. C., 1; Stump v. Long, 84 N. C., 616; McEachern v. Kerchner, 90 N. C., 177; Vaughan v. Gooch, 92 N. C., 524; Bank v. Comrs., 119 N. C., 214, 25 S. E., 966; Henry v. Hilliard, 120 N. C., 479, 27 S. E., 130; Bunn v. Braswell, 139 N. C., 135, 51 S. E., 927; Bank v. McEwen, 160 N. C., 414, 76 S. E., 222; Simmons v. McCullin, 163 N. C., 409, 79 S. E., 625; Harrison v. Dill, 169 N. C., 542, 86 S. E., 518; Belcher v. Cobb, 169 N. C., 689, 86 S. E., 600; Gardiner v. May, 172 N. C., 192, 89 S. E., 955; Holloway v. Durham, 176 N. C., 550, 97 S. E., 486; Morris v. Patterson, 180 N. C., 484, 105 S. E., 25; Distributing Co. v. Carraway, 189 N. C., 420, 127 S. E., 427; Bank v. Mitchell, 191 N. C., 190, 131 S. E., 656; Board of Education v. Comrs., 192 N. C., 274, 134 S. E., 852; Ellis v. Ellis, 193 N. C., 216, 136 S. E., 350.
The Court has expressed the principle in various forms, among which are these: “A decree by consent is the decree of the parties put on file with the sanction and permission of the court; and in such decrees the parties acting for themselves may provide as to them seems best concerning the subject matter of the litigation.” Edney v. Edney, supra.
“Consent judgments are in effect mere contracts of parties, acknowledged in open court in order to be recorded. As such they bind the parties themselves thereto as fully as other judgments.” Bank v. Comrs., supra.
Speaking with respect to jurisdiction in such cases, Clark, O. J., in Morris v. Patterson, supra, states that: “It is true that consent cannot confer jurisdiction but when, as in this case, the court had jurisdiction and the parties had power to consent, the judgment is conclusive.”
The question then arises as to whether in the proceeding in question the clerk had jurisdiction of the subject matter of the judgment. In some respects, we think so.
In this connection it may be noted that while the primary purpose of special proceedings for partition is the severance of the unity of possession, the parties may put the title in issue, and when they do so, and the title is adjudicated, the judgment is conclusive and binding. In such proceeding when tenancy in common, which is the necessary basis for it, is denied and there is a plea of sole seizin or an issue of title raised, the proceeding in legal effect is converted into an action in ejectment and should be transferred to the civil issue docket for trial upon issue of title. Gibbs v. Higgins, 215 N. C., 201, 1 S. E. (2d), 554, and cases *388cited. In that event, after such transfer, unquestionably the clerk of Superior Court has express statutory authority to sign a consent judgment. The statute provides that the clerk of Superior Court is authorized to enter consent judgments at any time, and such consent judgments so entered become the judgments of the Superior Court. C. S., 593, as amended by Public Laws 1921, Extra Session, ch. 92. Weaver v. Hampton, supra.
On the other hand, it may be said that although in a special proceeding for partition so converted into an action of ejectment, the clerk may have jurisdiction to so sign a consent judgment, the pleadings in the proceedings in question do not raise an issue of title. This is true, but, on the contrary, the judgment in effect put the title in issue and settles it. It is generally held that provisions in judgments and decrees entered by consent of all the parties may be sustained and enforced, though they are outside the issues raised by the pleadings, if the court has general jurisdiction of the matters adjudicated. Annotations 86 A. L. R., 84. And, in this connection, this quotation from opinion by Holce, J., in Holloway v. Durham, supra, is appropriate: “The decisions of this State have gone far in approval of the principle that a judgment by consent is but a contract between the parties put upon the record with the sanction and approval of the court and would seem to uphold the position that such a judgment may be entered and given effect as to any matters of which the court has general jurisdiction, and this with or without regard to the pleadings,” citing cases.
Moreover, in the special proceeding in question it appears that the purpose of the action was the partition among tenants in common of their interest in remainder in certain lands. The petitioning remainder-men sought actual partition. The responding remaindermen contended for a sale for partition. For either purpose the clerk of Superior Court had jurisdiction both of parties and of subject matter. Chapter 63 of Consolidated Statutes of 1919, as amended. An actual partition was ordered by the clerk, but upon the coming in of the report of the commissioners the defendants filed exceptions to report and prayed that the division as made be set aside, and that an order of re-division or for sale of the lands be made. Thereupon, the judgment, “by consent of all the parties,” as therein recited, and as hereinabove described, was entered, striking out the report of the commissioners and declaring J. M. Black-mon, one of the life tenants, father of remaindermen, and party to the proceeding, to be owner in fee simple of the lands in question, charged with the lien of specific sums of indebtedness to or for the remainder-men, respectively, payment of which he assumed in consideration of the adjudication of title so made. Though not in accordance with statutory *389procedure, tbe judgment, in tbe light of tbe factual setting, in effect confirmed a private sale of tbe interests in remainder.
Tbat tbe jurisdiction of tbe clerk includes tbe right to authorize private sale of land “has too frequently been decided by this Court to be now open to question.” Wooten v. Cunningham, 171 N. C., 123, 88 S. E., 1, and cases cited. While in this State tbe clerk of Superior Court is a court of very limited jurisdiction, having only such authority as is given by statute, Beaufort County v. Bishop, 216 N. C., 211, 4 S. E. (2d), 525; McCauley v. McCauley, 122 N. C., 288, 30 S. E., 344; Dixon v. Osborne, 201 N. C., 489, 160 S. E., 579, it is settled tbat tbe clerk in tbe exercise of bis probate jurisdiction is an independent tribunal of original jurisdiction. Mordecai in bis Law Lectures, Vol. 2, p. 490. See Hardy v. Turnage, 204 N. C., 538, 168 S. E., 823, where the Court said: “Tbe performance of a judicial act necessarily implies a court with both jurisdiction and discretion to bear and rule.” See Graham v. Floyd, 214 N. C., 77, 197 S. E., 873. “A prima facie presumption of rightful jurisdiction arises from tbe fact tbat a court of general jurisdiction has acted in tbe matter.” S. v. Adams, 213 N. C., 243, 195 S. E., 822, and cases cited.
However, if it be conceded tbat here tbe clerk has signed a judgment with respect to two subjects, the one within and tbe other without bis jurisdiction, tbe latter will be disregarded. For analogy see Ashe v. Gray, 90 N. C., 137; Mfg. Co. v. Barrett, 95 N. C., 36.
Finally, in respect to tbe consent judgment in question, it being therein recited to be “by consent of all tbe parties” though signed only by counsel for tbe parties, the authorities seem to sustain tbe view tbat it is presumed tbat tbe attorneys bad tbe necessary authority from their clients, and tbat, nothing else appearing, tbe judgment is binding upon tbe parties to tbe proceeding and those standing in privity to them. Gardiner v. May, supra; Chemical Co. v. Bass, 175 N. C., 426, 95 S. E., 766.
It is stated by Walker, J., in Gardiner v. May, supra, tbat: “A judgment entered of record, whether in inviium or by consent, is presumed to be regular, and an attorney who consented to it is presumed to have acted in good faith and to have bad tbe necessary authority from bis client, and not to have betrayed bis confidence or to have sacrificed bis right. Tbe law does not presume tbat a wrong has been done. It would greatly impair tbe integrity of judgments and destroy tbe faith of tbe public in them if tbe principle were different.” And further speaking to tbe same subject, Walker, J., said: “It is expressly stated in tbe order tbat it is made by consent of all tbe parties. We are bound by tbe statement as a matter of record.”
*390In Chemical Co. v. Bass, supra, Brown, J., said: “The law presumes the attorneys bad tbe necessary authority and the burden is on the party seeking to set aside a consent judgment to prove that no such authority existed.”
2. In the trial of an action for recovery of land, it is competent, under a general denial, to show that any deed offered by a party as evidence of title is void, for the reason that it is executed in the face of a statute prohibiting its execution, or by reason of want of capacity in the grantor, or for fraud in the factum. In truth, in controversies as to title, “evidence impeaching an alleged title deed is always as competent as that sustaining it.” Mobley v. Griffin, supra. See, also, Higgins v. Higgins, 212 N. C., 219, 193 S. E., 159; Toler v. French, 213 N. C., 360, 196 S. E., 312. But matters in the nature of an estoppel in pais, whether relied upon affirmatively, or by way of defense, must be pleaded. Toler v. French, supra. Hence, in the absence of specific plea, the proof tending to show estoppel by conduct is here unavailing to defendants.
3. It is a well established principle in this jurisdiction that when the grantee in a deed assumes the payment of a debt secured by mortgage or deed of trust on the land conveyed, he thereby becomes the principal debtor, Baber v. Hanie, 163 N. C., 588, 80 S. E., 57, and is estopped to deny that the mortgage or deed of trust is valid. Keller v. Parrish, 196 N. C., 733, 147 S. E., 9. Thus, when on 1 November, 1928, in deed from J. M. Blackmon and wife purporting to convey the land in question in fee simple, reserving to themselves life estates therein, Yancy B.elle Blackmon, as grantee, assumed the payment of the debt secured by the deed of trust from M. F. Holly and wife to Raleigh Savings Bank & Trust Company, Trustee, for the benefit of Atlantic Joint Stock Land Bank, she became the principal debtor, and will not now be heard to challenge the validity of the deed of trust, under foreclosure of which the evidence shows defendants trace their claim of title. And this being an.action for the recovery of land, the deed, though not pleaded by way of. estoppel, is competent as evidence in derogation of title asserted by Yancy Belle Blackmon.
The judgment below is
Affirmed.