dissenting: The plaintiff alleged that defendant, who is her brother, had committed a fraud upon her in drawing a deed by which he was directed to divide certain land equally between them, their father having given the direction,' as part of the land belonged to him and he desired that plaintiff should have one-half of it. The deed was so drawn and executed, as to give the defendant thirty acres more than the plaintiff, his sister. The action was brought to recover damages for the fraud. Issues were submitted to the jury and answered in favor of the defendant.
The trial was concluded on Saturday, the last day of the term, but the jury did not deliver their verdict until 4:45 o’clock p. m. The judge desiring to take the eastbound train for Asheville, N. C., the following order was entered in the minutes by consent: “It is agreed by the counsel for the parties that the jury may return their verdict to the clerk, and that the judgment may be signed out of term and out of the county.” The judge then left the courthouse to catch the train and went on it to Asheville. The jury returned the verdict to the clerk after the judge had left. No further action was taken in the case until September Term, 1919, when the same judge, of his own motion, set aside the verdict by the following order:
*635“In tbis cause, tbe same being tried at tbe July Term, 1919, of tbis court, and a verdict on tbe issues found by tbe jury in favor of tbe defendant, counsel agreeing that tbe court might sign judgment out of term, and out of tbe county, tbe court now in its discretion, and upon its own motion, sets aside tbe verdict in said case and orders tbe case to be reinstated on tbe civil issue docket of tbis court to the end that a new trial be bad upon issues submitted before another jury.” To tbis order, tbe defendant excepted and appealed.
Tbe question we have before us is one as to tbe judge’s power to set aside tbe verdict under tbe agreement of tbe parties as made at July Term, 1919. My opinion is that, under a former decision of tbis court, be bad no such power, as it was held unquestionably, that an agreement, like tbe one in tbis case, does not authorize such action by him. Tbis question arose some years ago and tbe Court fully considered it in Knowles v. Savage, 140 N. C., 372. Tbe Court, in that case, stated it to be conceded, that a motion to set aside a verdict for insufficient testimony must be made before tbe judge who tried tbe case, at tbe term in which tbe verdict was rendered (Rev., 554); Moore v. Hinnant, 90 N. C., 163; Turner v. Davis, 132 N. C., 187, and tbe judgment must be entered during tbe same term, unless otherwise agreed by tbe parties. Tbe same contention, as here made, was tbe identical one put forward in that ease, which is that an agreement authorizing tbe judge to sign tbe judgment after tbe adjournment of tbe court for tbe term, included tbe power to bear and determine a motion for a new trial, or to set tbe verdict aside, for error in fact or law, but tbe Court rejected tbis view, as it was not based on a reasonable construction of tbe agreement. It is urgently insisted that tbis was error, and that such an agreement, obviously implies, that preliminary motions, for a new trial etc., may be submitted and passed upon. We admit there is great force in tbe contention. They argue that neither party would take tbe risk of tbe judge having tbe power to sign a judgment, not knowing what tbe verdict would be, without tbe right of appeal and review. If be did, it would be very imprudent on bis part, and greatly jeopardize bis interests, and perhaps destroy them. If be could move for a new trial when there was error in law, or to set aside tbe verdict, as being against tbe weight of tbe evidence, or because tbe damages allowed by tbe jury are excessive, or for any other good, and valid reason, important and valuable rights might be saved. For tbis and other reasons they insist that tbe parties intended to retain tbe benefit of those remedies which are essential to preserve their rights, when error has been committed by tbe court or jury. Tbe argument may be plausible, and quite persuasive, in support of their position, but it has been thoroughly considered and weighed by tbe Court, and failed to produce conviction as *636to the correctness of plaintiff’s view. The Court, in Knowles v. Savage, supra, said that signing a judgment is a ministerial act, involving no exercise of judgment or discretion, and, if omitted for any reason, could be done at a subsequent term, as decided in Ferrell v. Hales, 119 N. C., 199, but that hearing and determining a motion to set aside a verdict is a different matter, as it calls for recollection of the testimony, manner, and demeanor of witnesses, and other incidents of the trial not likely to be impressed upon the memory of the judge, so that he may safely act upon them after adjournment. The Court then gave this admonition: “While convenience of counsel often occasions, and usually justifies, outside agreements of the character made in the ease, they frequently lead to confusion and irregularity in the administration of justice. The court will not by construction extend their terms beyond the fair and reasonable import of the language used. We concur with his Honor that he had no power after the adjournment of the term to hear and pass upon the motion.” The difference in the views thus presented is, that one adopts a literal or strict construction, and the other a liberal construction of the agreement with the purpose of giving effect to the presumed intention of the parties. ' The ease of Knowles v. Savage, supra, was cited in Stilley v. Goldsboro Pl. Mills Co., 161 N. C., 517, but there was no agreement in that case by the parties as to signing the judgment after the term of court had expired; it was simply a motion to set aside a verdict in vacation because of newly discovered evidence, which was made in term, but continued for hearing to the next term of the court, by order of the judge, in the absence of the plaintiff and his counsel. The Knowles case was also cited in Pfeifer v. Drug Co., 171 N. C., 214, but the point in this case was not presented. The court simply entered judgment on a verdict rendered at a former term, which was held to be regular and according to the course and practice of the court.
There is, at least, sufficient doubt, as to the true meaning of the agreement, to call for an adherence to the principle, that cases should not be lightly overruled, and not at all except where there is clear and manifest error. The Knowles case, was a well considered one, and the opinion written by an able and learned judge, and its right to continuance as a precedent is supported, at least by the fact that it construes the agreement according to the language of the parties to it, and the form of expression they selected to declare its meaning as it was understood by them at the time, while the Court’s view requires construction of it, by inference or implication as to what it means. The parties had the right to make the agreement, as it is confining the action of the judge to the mere signing of the judgment. All this but tends to show that the question is not so entirely free of doubt as to justify overruling Knowles v. Savage, supra.
*637It would baye been easy under a contrary decision, for parties to frame such agreements, so as to provide that the judge shall have the same power and jurisdiction as if all matters had been disposed of in term, and thereby preserve the right to- make all motions and review all decisions of the court by appeal.
If we are to abide by precedent, and adhere to our former decisions, we should have held that Knowles v. Savage is fatal to the plaintiff’s present contention, and therefore there was error. It follows that the order of the judge should have been set aside, the verdict reinstated and judgment entered thereon in accordance with the law, as declared in the Knowles case.
I shall, though, hereafter accept this decision of the court and abide by its construction of such agreements as it is only a question of procedure, which should be finally decided, and closed.