Menzel v. Menzel

119 S.E.2d 147 (1961)

254 N.C. 353

Paul T. MENZEL and wife, Sarah E. Menzel (nee Sarah E. Creekmore), v. Lucille R. MENZEL and Pauline C. Menzel, infant children of plaintiffs; Miles N. Overton and Grandy B. Overton. Pauline Menzel WILLIAMS, Petitioner, Movant, v. Charles Camden BLADES, Melick West Blades, and Lemuel Showell Blades, Jr., Trustees under that certain agreement recorded in Deed Book 98 at page 402, office of the Register of Deeds of Pasquotank County; Sarah E. Menzel (nee Sarah E. Creekmore), and Killian Barwick, Guardian ad litem.

No. 19.

Supreme Court of North Carolina.

April 12, 1961.

*153 LeRoy, Goodwin & Wells, Elizabeth City, Pritchett & Cooke, Windsor, for movant-appellant.

Worth & Horner, John H. Hall, Elizabeth City, for respondents-appellee.

DENNY, Justice.

Assignments of error Nos. 1, 2, 3, 4, 5, 6 and 8 are to the admission in evidence of the deed from J. N. Pruden, commissioner, to Sarah E. Menzel, dated 25 November 1913, purporting to convey a fee simple title to the lands in controversy, and recorded in Book 7, at page 557, in the office of the Register of Deeds in Camden County, and six deeds of trust, duly executed and acknowledged by Sarah E. Menzel and her husband after the execution and registration of the above deed, each of which purported to convey the fee simple title to said lands to secure the indebtedness indicated in the respective instruments, each of said instruments having been duly recorded in the office of the Register of Deeds of Camden County.

In our opinion, these assignments of error are without merit since the movant introduced in evidence the affidavit of her mother, Sarah E. Menzel, in which she disclaimed any knowledge of the proceeding which the movant seeks to set aside. The movant takes the position that her mother, Sarah E. Menzel, was seized only of a life estate in the lands involved and that she never became aware of the fact that her remainder interest was claimed by the respondents until 1957. It is not controverted, however, that Mr. and Mrs. Menzel and their infant children lived in Portsmouth, Virginia, prior to 1914. Moreover, after Sarah E. Menzel procured the deed from J. N. Pruden, commissioner, conveying to her the fee simple title to said lands, she and her husband and their infant children moved on the land and continued to reside thereon until June 1923, the month before the sale of the lands under foreclosure pursuant to the terms of a deed of trust executed by Sarah E. Menzel and her husband, dated 16 May 1917, to secure an indebtedness of $4,850. These assignments of error are overruled.

Assignment of error No. 7 is based on an exception to the introduction in evidence *154 of a plat, recorded in Plat Book 1, page 21, in the office of the Register of Deeds of Camden County, which map bears the legend "Property of Dr. L. S. Blades, Camden County, North Carolina."

The movant likewise introduced in evidence in the hearing below the affidavit of her mother, Sarah E. Menzel, in which she swore that the lands in which she inherited a life interest and her daughter the remainder were the lands "shown on a map recorded in Plat Book 1, page 21, Camden County Register's office." She further offered the affidavit of one Isaac Meiggs to the effect that he had cut timber off this land "at the instance of Dr. L. S. Blades." We do not think the introduction of this map was prejudicial to the movant, and this assignment of error is overruled.

Assignment of error No. 9 challenges findings of fact Nos. 4 and 5 with respect to the application for service of process by publication and the order directing publication. As we construe the findings of the court below, it is not contended that proper service on the infant defendants was obtained either by personal service or by publication. It would seem, however, that the irregularities and defects in the attempted service by publication are immaterial if the appointment of the guardian ad litem for the infant defendants is held to be valid. Hence, this assignment of error is overruled.

The movant's assignments of error Nos. 10 and 11 are to findings of fact Nos. 10 and 11. Finding of fact No. 10 is to the effect that at the Spring Term 1913 of Chowan County Superior Court, which began on 31 March 1913, Judge Whedbee heard this cause pursuant to the order of Judge Long and rendered a judgment which was recorded on the Minute Docket of Camden County. The movant contends that there is no evidence to support the finding that Judge Whedbee heard the cause at the 1913 Spring Term of Chowan Superior Court. The movant further contends there is no evidence to support finding of fact No. 11, to the effect that the "hearing before Judge Whedbee in Chowan County was had by consent of the attorneys for plaintiffs and of C. E. Thompson, guardian ad litem for the infant defendants."

In this connection it was stipulated in the hearing below that "Judge Harry W. Whedbee held the Spring Term of Superior Court for Chowan County 1913 and that said term commenced on March 31, 1913, and adjourned April 3, 1913."

The judgment roll in Camden County, introduced by the movant in the hearing below for the purpose of attack and by the respondents for all purposes, contains a judgment purporting to have been signed by Judge Whedbee. The judgment, among other things, contains the following: "Superior Court, Camden County, N. C. (Title of case.) Present Hon Harry W. Whedbee, Judge Presiding. This cause coming now to be heard by the court at Chowan Superior Court by consent decree, upon the pleadings and exhibits therein, and being heard after argument, by counsel, all parties being before the court and the infant defendants represented by C. E. Thompson, Esq., guardian ad litem, duly appointed: It is considered and adjudged by the court": etc. In this judgment Sarah E. Menzel was adjudged to be the owner of a life estate in the lands devised to her by Bailey J. Overton, with remainder to such issue of Sarah E. Creekmore (now Sarah E. Menzel) as should be living at her death and if none should then be living, then to Miles N. Overton and Grandy B. Overton in fee simple. It is set forth in the said judgment that it was for the best interest of the parties to sell the lands involved and invest the proceeds from such sale under orders of the court. J. N. Pruden was appointed commissioner to sell the lands and to report the sale to the next term of court, succeeding date of sale, and the judgment further provided for the value of the life interest of Sarah E. Menzel to be ascertained and credited on the purchase price of said lands should she become the purchaser *155 thereof. This confirms the fact that the court contemplated the sale of the lands involved in fee simple, otherwise there could have been no possible reason for ascertaining the value of the life estate of Sarah E. Menzel. These assignments of error are overruled.

The movant's assignment of error No. 12 is to the judgment signed by Judge Whedbee, on the ground that it was entered without consent, out of term and out of the county. She therefore contends that said judgment was null and void.

It appears from the court records in Camden County, introduced in the hearing below, that during the Spring Term 1913 of the Camden Superior Court that B. F. Long, Judge Presiding, entered the following order in this case: "In this cause all parties consenting it is considered and adjudged that the same be heard out of term and out of county at Spring Term 1913 of Chowan County Superior Court." This order was not dated, but the evidence tends to show it was entered 11 March 1913, since it appears in the minutes of the court under that date. However, on 12 March 1913, C. E. Thompson filed a verified answer as guardian ad litem of the infant defendants in this cause in the office of the Clerk of the Superior Court of Camden County. The fact that Judge Long ordered the hearing out of term and out of the county did not remove the case from Camden County. Therefore, the Clerk of the Superior Court of Camden County had authority to appoint a guardian ad litem for the infant defendants if it be conceded that application for such appointment was made after the above order was entered. Likewise, the court had the power to accept and file the guardian ad litem's verified answer in Camden County after the order for the hearing in Chowan County was made. Moreover, if the guardian ad litem was before the court and participated in the hearing in Chowan County as recorded in Judge Whedbee's judgment, and found as a fact by Judge Bone, such appearance would constitute a waiver of any objection to the hearing before Judge Whedbee.

The irregularity complained of in the appointment of the guardian ad litem for the infant defendants appears to be a mere clerical error or omission, and the fact that C. E. Thompson who was found by the Clerk of the Superior Court of Camden County to be a suitable person to represent the defendants, coupled with the fact that he filed a verified answer on behalf of the defendants and represented them in the hearing before Judge Whedbee, and so found as a fact by Judge Bone, leads us to the conclusion that such court had jurisdiction of the infant defendants and that no prejudicial error in connection therewith is made to appear. Therefore, the judgment entered by Judge Whedbee was not void, and at most was only voidable for irregularity not apparent on its face. Franklin County v. Jones, 245 N.C. 272, 95 S.E.2d 863, and cited cases; Gillikin v. Gillikin, 252 N.C. 1, 113 S.E.2d 38; Glisson v. Glisson, 153 N.C. 185, 69 S.E. 55; Tate v. Mott, 96 N.C. 19, 2 S.E. 176. This assignment of error is overruled.

Assignments of error Nos. 13 and 14 challenge the correctness of the finding that J. N. Pruden advertised the lands involved herein and sold them on 6 October 1913 and reported such sale to the November Term 1913 of the Camden County Superior Court and that Sarah E. Menzel became the purchaser at the price of $3,200 and recommended that the sale be confirmed; and further attacking the finding of fact that Sarah E. Menzel was dissatisfied with the Clerk's computation of the value of her life estate. Such findings are supported by the records in Camden County which were introduced in the hearing below; therefore, these assignments of error are overruled.

Assignment of error No. 15 presents no prejudicial error and is overruled.

Assignments of error Nos. 16, 17, 18 and 19 challenge findings of fact Nos. *156 19, 20, 21 and 22, set out hereinabove. The movant denies that there is any evidence to support finding of fact No. 19 with respect to the execution of the deed on 25 November 1913 by J. N. Pruden, commissioner, sufficient in form to convey to her the fee simple title to the lands involved. The other assignments are to the findings with respect to the execution of the deeds of trust set out in findings of fact Nos. 20 and 21 and with respect to the foreclosure of the deed of trust as set out in finding of fact No. 22. The movant contends these findings are immaterial, irrelevant, and incompetent. In our opinion these assignments of error are without merit and are overruled.

The movant's assignments of error Nos. 20 and 21 are to findings of fact Nos. 24 and 31. The movant contends that the court should have found that L. S. Blades refused to guarantee title to said lands and that he had received many times the purchase price for the life estate in said tract of land. The movant further contends that there is no evidence to support finding of fact No. 31, to the effect that in the exercise of ordinary business prudence she could have and should have discovered the irregularities of which she complains, at least twenty or more years ago, and should have known that the respondents and their predecessors in title were claiming ownership in fee simple of the lands in question. We think the findings of fact Nos. 24 and 31 are supported by competent evidence and, therefore, overrule these assignments of error.

The additional assignments of error are to finding of fact No. 32, to the effect that L. S. Blades was a bona fide purchaser for value of the lands in question, without notice of irregularities in this action of which the movant now complains, and to the conclusions of law and to the judgment entered pursuant thereto. In our opinion, these assignments of error are likewise without merit and are overruled.

No irregularity appears on the face of the record with respect to the judgment entered ordering the sale of the property, the sale, or the commissioner's report, or in the confirmation thereof. Neither is there any irregularity appearing on the record in connection with the foreclosure sale of the property in 1923, when the fee simple title to the lands involved was foreclosed and sold for the sum of $8,200 pursuant to the provisions of the deed of trust executed by Sarah E. Menzel and her husband on 16 May 1917 and duly registered in the office of the Register of Deeds of Camden County, North Carolina, on 28 May 1917.

It is well established in this jurisdiction that "* * * (I)n the absence of fraud or the knowledge of fraud, one who purchases at a judicial sale, or who purchased from one who purchased at such sale, is required only to look to the proceeding to see if the court had jurisdiction of the parties and of the subject matter of the proceeding and that the judgment on its face authorized the sale. Graham v. Floyd, 214 N.C. 77, 197 S.E. 873 * * *." Cherry v. Woolard, 244 N.C. 603, 94 S.E.2d 562, 566; Franklin County v. Jones, supra.

The contention that the description in the commissioner's deed was insufficient to convey the lands involved is untenable. The deed conveys "all the lands described * * * in the last will and testament of Bailey J. Overton, and more particularly described in the following deeds": (then follows a list of nine deeds executed by various grantors to Bailey J. Overton; in all but two of these deeds the book and page where the respective deeds were registered in Camden County were given. In one of the deeds the names of the grantors were given and the year the deed was executed, but the book and page where the deed was registered were not given. In the other deed the names of the grantors were given and the book where the deed was registered, but not the page in said book.) Following the listing *157 of the above deeds there appears the following: "Together with all other lands of which said Bailey J. Overton died seized and possessed in Camden County."

Nothing in the hearing below challenged the accuracy of the survey which Dr. L. S. Blades had made of the listed tracts of land or the correctness of the map of such lands recorded in Plat Book 1, at page 21, in the office of the Register of Deeds of Camden County. Moreover, the parties in the hearing below informed the court that the lands in controversy consisted of 426 acres.

That is certain which can be made certain, and lands may be conveyed by reference to an identifiable source of title. We so held in Peel v. Calais, 224 N.C. 421, 31 S.E.2d 440, and in Moore v. Fowle, 139 N.C. 51, 51 S.E. 796.

As pointed out by Judge Bone in finding of fact No. 30, Sarah E. Menzel asserted in her affidavit that her husband practiced a fraud upon her; she did not, however, give any particulars as to what the fraudulent acts or representations were. Moreover, the judgment confirming the sale of the lands involved constituted a final judgment. McLaurin v. McLaurin, 106 N.C. 331, 10 S.E. 1056. Therefore, any statement or inference with respect to fraud in connection with the movant's motion in this cause is mere surplusage. Carter v. Rountree, 109 N.C. 29, 13 S.E. 716.

In the last cited case, it is said: "It is well settled that pending an action before the final judgment an interlocutory order or judgment may be attacked for fraud by a motion or proceeding in the action, but after the final judgment the remedy for fraud is by an independent action brought for the purpose." McIntosh, North Carolina Practice & Procedure, 2nd Ed., Vol. 2, section 1718; Burgess v. Kirby, 94 N.C. 575; McLaurin v. McLaurin, supra.

The lapse of time will not bar the right to move to vacate a void judgment. City of Monroe v. Niven, 221 N.C. 362, 20 S.E.2d 311. On the other hand, all our decisions seem to hold that a motion to set aside a voidable or irregular judgment must be made within a reasonable time.

In Glisson v. Glisson, supra, a proceeding to sell lands to create assets to pay debts was instituted. The petitioners were never served with summons but a guardian ad litem was appointed. The decree authorizing the sale was entered on 9 February 1883. The motion in the cause to set aside the judgment was made on 16 December 1908. This Court said: "It is true that courts have power to correct their records and set aside irregular judgments at any time, but it is settled practice that they will not exercise the power where there has been long delay or unexplained and unwarranted laches on the part of those seeking relief against the judgment." [153 N.C. 185, 69 S.E. 56].

In Harrison v. Harrison, 106 N.C. 282, 11 S.E. 356, a proceeding was instituted by the administrator to create assets for the payment of debts. The sale took place in 1870. No service of any kind was made on the heirs of the decedent, nor was a guardian ad litem appointed for the infant heirs. This Court held that the motion to set aside the decree should be granted on the ground that the proceeding was utterly void and the lapse of nineteen years could not make it valid. The rights of the purchaser at the sale were left undetermined.

In Harrison v. Hargrove, 109 N.C. 346, 13 S.E. 939, 940, in an ejectment proceeding a new trial was granted in order to give the plaintiffs an opportunity to explain the delay of nineteen years. The Court said: "The decree and sale were made in 1870, and this action was brought in 1887. The motion to set aside the decree was made in 1889, and thus we have seventeen years or more of inaction on the part of the plaintiffs, who during all this time were under no disabilities whatever. In addition to this, the purchaser was in possession of the property, and there is evidence *158 showing that these plaintiffs with their mother lived about three hundred yards distance on an adjacent tract. It is true that the mother, under the will, had a lifeestate in the land, and that she did not die until 1887, * * *. These plaintiffs, having a right to be supported from said land during the life of their mother, and also entitled in remainder, could have moved to set aside the decree at any time after it was rendered, but, for some cause, they failed to do so until 1889.

"Taking these circumstances, together with the fact that they must have known of the long and adverse possession by the defendant of the adjoining land, and we are entirely clear that we should not exercise this `quasi equitable' (Black on Judgments, supra), power of the court, and grant the plaintiffs relief as upon setting aside the decree."

The new trial resulted in a verdict in favor of the innocent purchaser for value. The plaintiffs appealed and this Court affirmed. See Harrison v. Hargrove, 120 N.C. 96, 26 S.E. 936, 58 Am.St.Rep. 781.

In the present cause the judgment confirming the sale of the lands in controversy was entered in 1913, forty-five years before the movant filed her motion, and thirty-one years after she became of age. In view of the finding that L. S. Blades was a bona fide purchaser of the lands involved, without notice of the irregularities of which the movant complains, in our opinion she is not entitled to the relief she seeks. Morris v. Gentry, 89 N.C. 248; Harrison v. Hargrove, supra; Glisson v. Glisson, supra; Rawls v. Henries, 172 N.C. 216, 90 S.E. 140; Wynne v. Conrad, 220 N.C. 355, 17 S.E.2d 514; Gardner v. Price, 242 N.C. 592, 89 S.E.2d 147.

It is true that the statute of limitations in an ejectment action does not begin to run against the remainderman until the death of the life tenant. "This does not mean, however, that such remainderman may not move to vacate a void or voidable judgment until after the expiration of the life estate. This he may do at any time if the action is taken seasonably and laches cannot be imputed to him." Narron v. Musgrave, 236 N.C. 388, 73 S.E.2d 6, 9. See also Harris v. Bennett, 160 N.C. 339, 76 S.E. 217.

It will be noted that the movant did not except to or assign as error findings of fact Nos. 1, 2, 3, 6, 7, 8, 9, 16, 17, 18, 23, 25, 26, 27, 28, 29, 30 or 33.

The judgment entered below will be upheld.

Affirmed.