HENDERSON COUNTY, NC - COURT - Calvin Edney v. Ambrose J. Edney, Aug 1858
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CALVIN EDNEY and others against AMBROSE J. EDNEY,
North Carolina State Supreme Court, August Term, 1858, 57 NC, page 127:
Regarding a Slave in the Estate of Sarah Mills Edney

Brothers, who had been co-administrators of the will of their father, Asa
Edney, regarding the estate rights of Asa's son-in-law Joseph Pickett,
following the death of their mother Sarah Mills Edney, in whose estate Pickett
was named her executor.

Where a legatee purchased property at the sale made by the executor, and gave
bond with sureties for the price, it was Held that a decree in favor of the
principal, in a court of equity in another State, to which such sureties were
not parties, declaring the said bond to be set-off by the claim for a legacy,
is not evidence in a suit brought by the sureties to establish the same set-
off, and that the executor is not estopped by such decree from proceeding to
collect the bond from the sureties.

Cause transmitted from the Court of Equity of Henderson County.

One Joseph Pickett, purchased of the defendant, A.J. Edney, as the
administrator "pedente lite" of Mrs. Sarah Edney, a negro woman and child
belonging to the testatrix's estate, for which he gave a bond for $435, with
Calvin Edney, Marvel Edney and Samuel J. Edney as his sureties. After the
litigation was over, during which he was appointed administrator, and the will
of Sarah Edney was established, the said Ambrose J. Edney qualified as
executor to the same, and brought suit against the plaintiffs Marvel and
Samuel J. Edney, in the Superior Court of Henderson, and recovered judgment
for the principal and interest of the said bond. Joseph Pickett, having before
the commencement of this suit, removed to Gilmer county in the State of
Georgia, the bond in question was sent thither and put in suit in the Superior
Court of that county, and a judgment at law was recovered in that court
against him, the said Joseph Pickett, for the principal and interest due
thereon, from which he took an appeal and while the appeal was pending,
Pickett filed a bill in the court of Equity for Gilmer county, Georgia, for an
injunction, alleging that in right of his wife, who was a daughter of the
testatrix, he was entitled to a legacy under the will of Mrs. Sarah Edney, and
that the plaintiff in the suit at law, as executor of her will, had in his
hands, over and above what was required for the payment of the debts of the
estate, a sum applicable to the payment of his legacy, and more than
sufficient to pay all the unpaid balance of the said note and interest, and
praying that this fund might be declared to be an equitable set-off to the
action, and that the further proceedings at law be perpetually enjoined.

To this bill the said Pickett only was made a party plaintiff. The defendant
answered and made an exhibit of the state of his dealings as executor, and
insisted that there was nothing in his hands applicable to the legacy coming
to Pickett in right of his wife. There was replication to the answer and the
cause finally heard in the following extract from the record certified from
that court:

"State of Georgia, Gilmer county, May Term, 1854, present, his Honor David
Irwin, Judge of the said court. Appeal Docket -- verdict: -- We the Jury find
and decree that the note sued on in the common law action which is now pending
on the appeal in the Superior Court of Gilmer county, in favor of Ambrose J.
Edney against Joseph Pickett, is paid off, and fully satisfied, and we further
decree that the plaintiff in the said common law action, now pending as
aforesaid, be, and is hereby, perpetually enjoined from prosecuting said
action, and we further decree that Ambrose J. Edney pay fifty-five dollars and
all costs. May 11th, 1854. Signed by John M. Sharp, foreman, and the other
jurors."

"Whereupon it is ordered and adjudged and decreed by the Court, now here, that
the note sued on in the common law action, which is now pending on the appeal
in the Superior Court of Gilmer county, in favor of Ambrose J. Edney against
Joseph Pickett, is paid off and fully satisfied; and we further decree, that
the plaintiff in the said common law action, now pending as aforesaid, be, and
is hereby, perpetually enjoined from prosecuting said action, and that the
said plaintiff cease further to prosecute the said action against the said
Joseph Pickett, and that the said Joseph Pickett do recover from the said
Ambrose J. Edney, the sum of [omitted] for costs in this behalf laid out and
expended." Signed by the Judge.

The bill alleges that, notwithstanding the fact, that the plaintiff has in his
hands a fund, to which the said Pickett, the principal, in the bond, is
entitled, and notwithstanding that he is perpetually enjoined from collecting
the said bond out of the principal debtor, he has caused an execution to issue
on the judgment obtained against Marvill and Samuel Edney in the Superior
Court of Henderson, and thereafter to have their property sold to satisfy the
same. The prayer of the bill is, to have it declared that the debt, due on
said judgment, is set off and discharged by the claim of Pickett for a legacy,
and that the defendant be perpetually enjoined from enforcing the execution.
Defendant denied that there was any thing in his hands applicable to the
legacy of Pickett, and says the debt, sued for, is coming to him for
commissions, and other charges incurred in selling the estate of Mrs. Edney.
The cause was set down for hearing on the bill, answer, exhibits and proofs,
and sent to this Court.

J.W. Woodfin and N.W. Woodfin, for plaintiffs. Shipp, for defendant.

JUDGE C.J. PEARSON: The equity of the plaintiffs is put upon two grounds: That
Pickett, the principal debtor, is entitled to an equitable set-off, by reason
of an amount due him, in right of his wife, by the defendant, as executor of
her father, and the plaintiffs, as sureties, are entitled to have the benefit
of this set-off. In the second place, that by the proceedings in Georgia, it
is judicially ascertained and declared, that the debt in question has been
"fully paid off and satisfied" by Pickett, and it is thereupon decreed, that
the defendant be perpetually enjoined from proceeding further against the said
Pickett in respect to the debt.

If the plaintiffs had proved the existence of the supposed equitable set-off
as between Pickett and the defendant, there could be no question as to their
right to have the benefit of it. But in respect to such proof, there is an
entire failure, and this court cannot make the declaration, which is essential
to their equity, to wit, that the defendant, as executor, has in his hands, or
is chargeable with a fund, in which Pickett is entitled to share. The answer
denies that after payment of debts, etc., there is any residue subject to
distribution, and the plaintiffs, instead of asking for a reference to have an
account stated, which is necessary, according to the course of the court,
whenever the object is to settle an estate, and ascertain the existence of a
fund, rely upon the verdict and decree in the proceeding in Georgia, for the
purpose of establishing that allegation. The proceeding in Georgia is a bill
in equity by Pickett, against the defendant, in which it is alleged that the
defendant, as executor of the father of Pickett's wife, has in his hands, or
is chargeable with, a residuary fund, in which Pickett is entitled to a share;
that such share is of an equal or greater amount than the debt sued for, and
the prayer is for an account, that Pickett may have the portion of the
residuary fund, to which he is entitled, applied in satisfaction of the debt,
and that the defendant be enjoined from the further prosecution of the action
at law. An answer is filed, in which the defendant denies that thee is any
residuary fund in his hands, or with which he is chargeable, and avers that
after paying the debts, etc., the assets of his testator are exhausted,
leaving a balance due to him for commissions, etc. The proceeding then, sets
out a verdict and a decree in favor of the plaintiff.

Laying no stress upon the fact, that no account is stated, which ought to have
been done according to the course of a court of equity, and that a jury is
unfit to deal with a matter of account, which involves a complicated
settlement of an estate; and laying no stress on the further fact, that the
verdict and decree go beyond the allegations of the bill, and find that the
debt has been fully paid, in which there is a variance, for the bill does not
allege a payment, but simply an equitable set-off, this Court is opinion that
the verdict and decree are not admissible as evidence on the part of the
plaintiffs, in this suit, because they were not parties, and the rule "res
inter alios acta" applies. So, that the proceeding in Georgia, cannot be used
as evidence, either for or against them, in reference to the truth of the
facts therein found or declared.

Upon the second ground, insisted on in support of the plaintiffs' equity, the
decree is evidence of its own existence; and the question is, what is its
legal effect as between the parties to this suit?

It is urged, that as the defendant is enjoined from collecting the debt out of
Pickett, it would be an indirect violation of the injunction, if he collects
it out of the plaintiffs, who are his sureties, and that is an anomalous state
of things for a creditor to be at liberty to collect a debt out of the
sureties, when he has no right to collect it out of the principal. The
suggestion is plausible, but it is fallacious. The principal is protected
because, in his suit against the other creditor he was able, in some way, to
establish the allegation of an equitable set-off or of payment in full, and if
the sureties, in their suit against the creditor, could establish either of
these facts, they would be protected in like manner. But they are unable to
establish either of these facts, and consequently have not entitled themselves
to the like protection, and their inability to do so, proves that, although as
between the principal and the creditor, these facts are to be taken as true,
yet, in point of fact, they are not true, and the creditor is not estopped as
against the sureties by the former proceeding, to which they were not parties.
"Estoppels must be mutual, and bind only parties and privies." For the sake of
illustration: suppose one of two joint and several obligors is sued, and the
plea of payment is found in his favor, afterwards the other obligor is sued,
and pleads payment by the obligor who is first sued, and in support of the
plea, offers no proof but the verdict and judgment in the former action; it is
certain such evidence is not admissible as to the truth of the fact alleged,
and it is equally certain, that in the absence of proof, the issue must be
found against him, and he will have the money to pay, notwithstanding the fact
of the verdict and judgment in favor of his co-obligor; in other words, as he
was not a party to the first action, he is not bound by it, nor is he entitled
to the benefit of the event of that suit; under the rule "res inter alios
acta".

PER CURIAM. Bill dismissed, in favor of Calvin Edney.