HENDERSON COUNTY, NC - COURT - William Clark v. Marvel M. Edney, Dec 1845
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WILLIAM CLARK v. MARVEL M. EDNEY et al,
North Carolina State Supreme Court, December Term, 1845,  NC 51.

Acting as executors of the estate of one Jane M. Townsend. Dr. Marvel Mills
Edney was the son of the Reverend Asa Edney and Sarah Mills Edney.

Where a plaintiff in a petition, claims to be an assignee by a written
instrument, whether he is so or not, is a question of law for the Court, not
of fact to be submitted to a jury. Where a paper under which a plaintiff in a
petition claims to be an assignee does not on its face purport to be an
assignment, but only an order for money, it is necessary that the alleged
assignor or his personal representative should be a party to the petition,
either plaintiff or defendant. On a petition against administrators for a
distributive share of an estate all persons entitled to distribution should be
made parties.

Appeal from the Superior Court of Law of Henderson County, at the Fall Term,
1845, his Honor Judge Bailey presiding.

The petition sets forth, that Jane M. Townsend died intestate in the year
[blank], leaving a considerable personal estate; that administration was
granted to the defendants, who took into their hands all the personal
property; that James M. Townsend was one of the children of Jane M., and that
he, for a valuable consideration, assigned to the petitioner all his interest
as one of her next of kin; that more than two years had elapsed, after the
qualification of the defendants, and that the petitioner had demanded of the
defendants a settlement of the estate and a payment to him of the distributive
share due to James M. Townsend, who is dead. He prays that the defendants may
be decreed to account with and pay over to him what is due, as such assignee
of James M. Townsend, and prays process against the said defendants.

The defendants file a joint answer, admitting the death of Jane M. Townsend,
and that they have been duly appointed her administrators, and have taken into
their hands her personal property, to the amount set forth in their
inventories. They deny that the petitioner is the assignee of James M.
Townsend, who is admitted to be one of the next of kin of Jane, and entitled
to a distributive share; and claim in their answer that the other children of
Mrs. Townsend should be made parties. The assignment to Clark, under which he
claims the distributive share of James M. Townsend, as set forth in his
petition is as follows: "Mr. Marvell M. Edney and R.R. Townsend, please to
settle with, and pay over to, William Clark, all the amount in your hands,
belonging to me, and this shall be your receipt for the same." This paper was
presented to the defendants by a person sent by the petitioner, and they
refused to take it up or to recognize it, as addressed to them in their
representative characters, or as authorizing them to pay over to the
petitioner the distributive share of James M. Townsend. At the time of filing
this petition, James M. Townsend was dead. The petition was filed in the Court
of Pleas and Quarter Sessions of Henderson County, and, upon the coming in of
the answer, was dismissed. Upon appeal to the Superior Court, replications
having been taken, issues were made up to be tried between the parties. At the
Fall Term, 1845, issues were made up and tried. The issues were -- was William
Clark the proper assignee of James M. Townsend; 2nd, has the petitioner called
on the defendants, as administrators, to pay his claim. These issues were
tried by the jury and found for the plaintiff, whereupon the Court decreed
that the defendants should pay the plaintiff the sum of $33.14, and the
defendants appealed.

No counsel appeared in this Court for either party.

JUDGE NASH: Many orders and decrees are made in the hurry of business, on the
circuits, which will not bear a strict scrutiny, and which the Judge himself
would not make, if he had time for the least reflection. This case furnishes
an instance. The presiding Judge submits to the jury the question, whether the
petitioner was the assignee of James M. Townsend's distributive share. This
was a question of law to be decided by him. After the jury had responded to
the issues submitted to them, without any reference to the Master to ascertain
the situation of the assets, and the amount due for the distributive share of
James M. Townsend, the Court decrees that the defendants should pay the
plaintiff a certain sum. We think this was erroneous. But the proceedings are
in themselves defective.

At the filing of the petition, James M. Townsend was dead. His representative
is not made a party, nor are the other children of Mrs. Townsend, nor is any
reason given why they are not. The petitioner claims to be the assignee of
James M. Townsend. The paper, which he alleges contains the assignment, does
not purport to be an express assignment of the drawer's distributive share --
there are no words of conveyance in it -- it is not addressed to the
defendants in their representative character; it is but an order for the
payment of what money of his, might be in their hands. It is true, an order by
one of the next of kin, upon the administrator, such as the one in this case,
may, under circumstances, be held to be an equitable assignment of his
distributive share. But when it is, as here, not upon its face an assignment,
the persons claiming under it, in order to recover, must make the alleged
assignor a party in order to ascertain its character... But it was equally
necessary to make the other children of Mrs. Townsend parties. It is never the
aim of a court of equity to do complete justice, by deciding upon and setting
the rights of all parties interested in the subject of the suit, in order to
prevent future litigation, and to make the performance of the orders of the
Court perfectly safe to those, who are compelled to obey them. All persons,
therefore, who are interested in the question, or concerned in the demand,
ought to be made parties. The other distributees of Mrs. Townsend are directly
interested in the question and concerned in the demand. The fund sought to be
divided is a joint one, in which all the next of kin have an interest. The
other children ought to have been parties, and no reason is assigned why they
are not.

This objection can as well be taken on the hearing as by plea. The case is
before us for final hearing upon an appeal, and we must decide it as it is.

PER CURIAM. The decree below reversed, and the petition dismissed at the costs
of the plaintiff, in favor of Marvell Edney.