Beam v. Almond, 194
| Decision Date | 11 October 1967 |
| Docket Number | No. 194,194 |
| Parties | Addie S. BEAM v. Edmond D. ALMOND and wife, Bertha J. Almond, Cleveland Savings and LoanAssociation, a corporation, and Lloyd C. Bost, Administrator of the Estate ofBayard Thurman Falls, Sr., Trustee, deceased. |
| Court | North Carolina Supreme Court |
Joseph M. Wright and Reuben L. Elam, Shelby, for plaintiff appellant.
Falls, Hamrick & Hobbs, by L. L. Hobbs, Shelby, for defendant appellees.
Judge Falls erred in allowing the motion to dismiss the present action and taxing the costs against the plaintiff.
In Hayes v. Ricard, 251 N.C. 485, 112 S.E.2d 123, it is said:
This is said in Walker v. Story, 256 N.C. 453, 124 S.E.2d 113:
'Reference is made in Hayes v. Ricard, supra, to the well established rule that '(a) judgment rendered in an action estops the parties and their privies as to all issuable matters contained in the pleadings, including all material and relevant matters within the scope of the pleadings, which the parties, in the exercise of reasonable diligence, could and should have brought forward.' Bruton v. Carolina Power & Light Co., 217 N.C. 1, 6 S.E.2d 822. But this rule is applicable where, as held in Hayes v. Ricard, supra, the judgment in the prior action constitutes an adjudication thereof upon the merits, not to a judgment of involuntary nonsuit entered on account of the insufficiency of plaintiff's evidence. Kelly v. Kelly, supra, 241 N.C. p. 150, 84 S.E.2d p. 809.
A judgment based on matters of practice or procedure is not a judgment on the merits. Hayes v. Ricard, supra.
In United States v. California Bridge & C. Co., 245 U.S. 337, 38 S.Ct. 91, 62 L.Ed. 332, the Court said:
'The doctrine of estoppel by judgment, or Res judicata, as a practical matter, proceeds upon the principle that one person shall not a second time litigate, with the same person or with another so identified in interest with such person that he represents the same legal right, precisely the same question, particular controversy, or issue which has been necessarily tried and finally determined, upon its merits, by a court of competent jurisdiction, in a judgment In personam in a former suit.'
So far as the record before us discloses, Judge Falls heard no evidence in the former action and heard no evidence in the second action. In the present action, Cleveland Savings and Loan Association, which, according to the allegations of the complaint in the present action, holds a note executed by defendants Almond and secured by a deed of trust upon the house and lot which is the subject matter of this action, in which deed of trust B. T. Falls, Sr., now deceased, was named as trustee, and Lloyd C. Bost, administrator of the estate of B. T. Falls, Sr., trustee, deceased, have been brought in as additional parties defendant. It is manifest that there has been no adjudication on the merits. Therefore, the former judgment in the first case is not a bar to the present action, and Judge Falls erred in dismissing the present action on the ground that plaintiff is now estopped by the judgment entered in the former action to prosecute the present action.
Each party defendant in the present action filed a demurrer to the complaint in the present action, as set forth above. On motion of plaintiff, the instant action came on for hearing upon the demurrers filed by defendants at the 13 February 1967 Session of Cleveland County Superior Court. The Honorable W. K. McLean, judge presiding, entered an order overruling the demurrers and allowing defendants thirty days to file answers. According to the record before us, there was no exception taken to this order of Judge McLean.
In the Supreme Court all the defendants herein filed a demurrer Ore tenus upon the following grounds, in substance: (1) The complaint does not state facts sufficient to constitute a cause of action against defendants Edmond D. Almond and wife, Bertha J. Almond, in that it fails to state with particularity the essential facts to constitute a cause of action for fraud, or a cause of action for undue influence, or a cause of action for mental incapacity; (2) the complaint attempts to allege an anticipatory breach of contract wherein the defendants Almond were to have possession of the land of the plaintiff in return for their promise to support her; however, no breach thereof is alleged; (3) the complaint fails to state a cause of action against the defendant Cleveland Savings and Loan Association and its trustee, since upon the face of the complaint said defendant Savings and Loan Association is the Bona fide holder of a first lien secured by a deed of trust for purchase money on the property which is the subject matter of this action, the loan having been made to defendants Almond to furnish them purchase money and that the prayer of the plaintiff will not in any wise affect the status of this lien; (4) several causes of action have been improperly united for that the plaintiff asks to unite an alleged cause of action to rescind her deed with alleged causes of action to destroy a lien held by another defendant, and a cause of action alleging the anticipatory breach of contract between the plaintiff and the defendants Almond, which alleged causes of action are not separately stated, do not belong to one class and do not affect all parties named as defendants herein.
This is said in 1 Strong's N.C.Index 2d, Appeal and Error, § 10: 'A defendant may file a demurrer ore tenus in the Supreme Court on the ground that the complaint, together with any amendment thereto, fails to state facts sufficient to constitute a cause of action.'
On a demurrer Ore tenus to the complaint, we take the case as made by the complaint. It is hornbook law that the office of a demurrer is to test the sufficiency of a pleading, admitting for the purpose, the truth of factual averments well stated and such relevant inferences as may be deduced therefrom, but it does not admit any legal inferences or conclusions of law asserted by the pleader. It is also common knowledge of the Bench and the Bar that the court is required on a demurrer to construe the complaint liberally with a view to substantial justice between the parties, and every reasonable intendment is to be made in favor of the pleader. G.S. § 1--151; Bailey v. McGill, 247 N.C. 286, 100 S.E.2d 860, and cases cited.
Plaintiff alleges, Inter alia, that at the time of the transaction complained of she was 70 years old, very ill, was a patient in a home for the aged, and was under the influence of heavy stimulants and drugs and therefore incapable of understanding what she was doing, all of which was well known to the defendants Almond; that said defendants Almond had gained ascendency and domination over her will through twelve years of friendship and by their persistent domination over her affairs; that they fraudulently procured her signature to a deed which she understood to be a contract in which she agreed to give defendants Almond her house and lot, which is the subject matter of this action, at her death in return for their promise to support her in her home for the rest of her life and to pay her burial expenses upon her death; and that her deed to the defendants Almond is without consideration, fraudulent and void, and should be cancelled. During the month of August, 1965, she learned that defendants Almond were attempting to sell her property and put her out of her own home. At this time she asked defendants Almond to explain, and was told by them that they had a deed for her home and had a right to sell it.
Although fraud is not alleged in all of its elements with the particularity required by our decisions, Davis v. Davis, 256 N.C. 468, 124 S.E.2d 130; New Bern v. White, 251 N.C. 65, 110 S.E.2d 446, and although the complaint does not allege that the plaintiff relied on any misrepresentations and was induced thereby to act to her damage, 2 Strong's N.C.Index, Fraud, § 8, yet it is our opinion, and we so hold, that construing the complaint liberally with a view to substantial justice between the parties, G.S. § 1--151, in the light...
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