Menzel v. Menzel
| Decision Date | 23 September 1959 |
| Docket Number | No. 98,No. 402,No. 20,98,402,20 |
| Citation | 110 S.E.2d 333,250 N.C. 649 |
| Court | North Carolina Supreme Court |
| Parties | Paul T. MENZEL and wife, Sarah E. Menzel (nee Sarah E. Creekmore) v. Lucile 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 Bookat page, office of the Register of Deeds of Pasquotank County, and Sarah E. Menzel (nee Sarah E. Creekmore). |
LeRoy, Goodwin & Wells, Elizabeth City, for appellants.
Worth & Horner, Elizabeth City, for appellees.
On 12 February 1912 summons issued for defendants from the Superior Court of Camden County in an action entitled 'Paul T. Menzel and wife, Sarah E. Menzel (nee Sarah E. Creekmore) v. Lucile R. Menzel and Pauline C. Menzel, Infant Children of Plaintiffs; Miles N. Overton and Grandy B. Overton.' This summons was returned 'not to be found' as to all defendants.
In September 1912 plaintiffs filed a complaint alleging in substance: Bailey J. Overton died in 1884 leaving a will which had been duly probated in Camden County, copy of which was annexed to and made a part of the complaint; he left as his heirs his widow, then dead, and a granddaughter, the plaintiff Sarah; Bailey J. Overton died seized of real estate in Camden County, a portion of which descended to plaintiff Sarah as heir at law, subject to the life estate of the widow which had then terminated; the remaining real estate was devised to Sarah for life with remainder to her issue, should she leave any, and if Sarah should die without issue, to his nephews Miles N. Overton and Grandy B Overton; the plaintiff Sarah was by descent and the terms of the will the owner in fee of all the land of which Bailey Overton died seized; a sale of the property and reinvestment of the proceeds was desirable and to the best interest of the owners. The prayer of the complaint was that plaintiff Sarah be declared the owner in fee of said lands and for a sale and reinvestment of the proceeds. On 24 May 1912 Sarah Menzel made an affidavit that defendants were not residents of the State of North Carolina and could not be found therein; that a cause of action existed in favor of the plaintiffs against the defendants; that the defendants were proper parties to an action relating to real estate described in the will of Bailey J. Overton. At the spring term 1912 the clerk made an order for publication of summons, based on the affidavit of plaintiff Sarah, returnable 'at the fall term 1912 of the Superior Court of Camden County, beginning on the second Monday after the first Monday in September, 1912'; on 28 May 1912 the clerk signed a notice for publication in a newspaper notifying defendants that an action had commenced in the Superior Court of Camden County 'concerning real estate, of which the Superior Court of the said county has jurisdiction * * *.' The notice directed the defendants to appear at a term to be held 'on the first Monday after the first Monday in September, 1912.' At the spring term 1913 counsel for plaintiffs applied to the clerk for the appointment of a guardian ad litem for Lucile and Pauline Menzel. On 12 March 1913 the clerk entered an order reciting: 'It appearing to the Court that the defendants Lucille & Pauline Menzel are minors without general or testamentary guardian and it appearing that C.E. Thompson is a suitable and discreet person to represent their interest in this cause, it is therefore considered and adjudged that ............ be and is hereby appointed guardian ad litem * * *.' On 12 March 1913 C. E. Thompson, guardian ad litem, filed an answer for the infants admitting all of the factual allegations of the complaint, denying plaintiffs' conclusions. At the spring term 1913, which convened 10 March 1913 (c. 38 P.L.1911) Judge B. F. Long, presiding, entered an order reading: 'In this cause all parties consenting, it is considered and adjudged that the same be heard out of term and out of the county at spring term 1913 of Chowan County Superior Court.' The record presently before us does not disclose the date this order was signed by Judge Long. Judge H. W. Whedbee construed the will and rendered judgment declaring plaintiff Sarah the owner of all the lands for her natural life with remainder over to such issue of Sarah as should be living at her death, and if none should then be living, to the defendants Overton. Judge Whedbee, finding a sale for reinvestment was to the interest of all parties, directed a sale providing 'that the proceeds of said sale, less cost of sale be reinvested under order of this Court.' The judgment then directed that the value of the life estate be ascertained 'and commuted, shall be paid to, or allowed in payment for said land, should she become the purchaser.' The commissioner advertised the property for sale on 6 October 1913. Plaintiff Sarah became the purchaser for $3,200. The sale was reported by the commissioner. The value of the life tenant's estate was ascertained to be $2,658.68. The commissioner was, at the November term 1913, directed to execute the deed and disburse the proceeds. Pursuant to this order, deed was made to Sarah Menzel.
In December 1958 Pauline Menzel Williams, nee Pauline Menzel, filed in the Superior Court of Camden County a motion, service of which was accepted by L. S. Blades, Jr., Charles C. Blades, and Melick W. Blades, and Sarah E. Menzel. The motion so filed asserts that the original summons issued in February 1912, the complaint, the affidavit for publication of 24 May 1912, the order of publication, the order appointing guardian ad litem, the answer of the guardian ad litem, the order directing the hearing at Chowan Superior Court, judgment signed by Judge Whedbee, the order determining the life estate of Sarah Menzel, the confirmation of the sale, and all other orders, judgments, and proceedings in said action should be set aside and declared null and void, including the deed from the commissioner to the life tenant. As reasons for the motion she asserted the action was never in fact instituted by Sarah E. Menzel, no guardian ad litem was ever properly appointed for movant, no proper answer was ever filed in said action by any guardian ad litem, 'the orders and judgments entered and the proceedings had in the aforesaid 1912 proceeding were improperly and improvidently had and entered, without legal authority, basis or justification,' Paul T. Menzel, plaintiff, perpetrated a fraud upon Sarah E. Menzel, the other plaintiff, and for other reasons assigned in her affidavit, copy of which she attached to her motion and notice. In the affidavit it is asserted that Lucile Menzel was dead, leaving movant Pauline, who had intermarried with F. Webb Williams, as her heir at law; that movant was only five years of age when summons issued for her in 1912, that movant did not know until the latter part of 1957 of the action instituted in 1912; that she had not been properly served with process; and the appointment of guardian ad litem and filing of the answer were improper; 'at no time was any consent or approval given or accorded to any step, order, or part of the above-entitled 1912 proceeding by this affiant, her mother, Sarah E. Menzel, any properly appointed guardian of the minor defendants therein, any properly employed attorney, nor any other person connected therewith.' The affidavit charges there were 'no proper notice of hearings, consent to hearings, advertisement for service or for sale, nor any other proper or legal step taken in said proceeding which might in any way or manner accord to the same the validity or support of law or justice.' She further states facts tending to show that Paul T. Menzel, her father and one of the plaintiffs, perpetrated a fraud on the court and on her and her mother. She asserts that the property was sold for far less than its value, that she never received anything from the proceeds of sale, that it was subsequently acquired by Dr. L. S. Blades with knowledge of the defects in the proceeding. Respondents claim under L. S. Blades.
Sarah Menzel filed no answer to the motion. Respondents Blades filed a 'Request for Denial of Motion.' As a basis for the motion to dismiss, they asserted movant based her motion on fraud, and since a final judgment had been entered and the action terminated, relief could not be obtained by motion in the cause, but an independent action was the proper and exclusive means to obtain relief. Respondents further asserted that movant was barred by the lapse of time--45 years--since the judgment was entered and deed made.
At the spring term 1959 of Camden all parties in interest consented that Judge Paul, who was then presiding over the Superior Court of Camden County, should hear the matter at the May term of Pasquotank Superior Court and enter judgment to the same effect as if heard and entered in Camden.
Movant, at the hearing in Pasquotank, offered in evidence the judgment roll in the Camden action of 1912. Upon objection of respondents it was excluded. The judgment states: 'After hearing the reading of Pauline Menzel Williams' Notice and Motion and her Affidavit and Petition, and after hearing the reading of the named Respondents' Request for Denial of Motion, and after hearing argument of counsel, the Court being of the opinion that respondents' Motion should be determined on the petition and pleadings themselves and that it should rule on respondents' Request for Denial of Motion, treating respondents' Motion and contentions as being that if the allegations or averments of said movant's Motion and Affidavit be admitted, she is not entitled to the relief sought by her in the manner presented, and the Court being of the opinion that movant's Motion and Affidavit are based upon allegations of fraud allegedly...
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