HENDERSON COUNTY, NC - COURT - Ambrose J. Edney v. Elisha King, Aug 1847
====================================================================
     USGENWEB NOTICE: In keeping with our policy of providing
         free information on the Internet, data may be used by
         non-commercial entities, as long as this message
         remains on all copied material. These electronic
         pages may NOT be reproduced in any format for profit
         or for presentation by other persons or organizations.

         Persons or organizations desiring to use this material
         for purposes other than stated above must obtain the
         written consent of the file contributor.

	 The submitter has given permission to the USGenWeb Archives
	 to store the file permanently for free access.

         This file was contributed for use in the USGenWeb
         Archives by: Marshall Styles <marshallstyles@yahoo.com>
====================================================================
AMBROSE J. EDNEY, Executor, et al v. ELISHA KING, Administrator, et al,
North Carolina State Supreme Court, August Term, 1847, NC 465. 

Regarding the estates of Major William Mills of Rutherford County and Reverend
Asa Edney of Henderson County, NC.

The property being contested was two valuable slaves, a girl named Nelly and a
boy named George.   Ambrose Edney is the son of the Reverend Asa Q. Edney, by
then deceased. The Henderson County Courts ruled in favor of King and sent the
case to the Supreme Court on appeal by Ambrose Edney. A summary of the Courts'
decision:

(1) Every person who claims to recover, either at law or in equity, must show
title in the pleadings, and that ought to be done by distinct averments or
plain affirmative statements.  (2) The title of a bill is no part of it. It is
merely a mode of conveniently denominating a bill or cause, and it can not be
deemed a part of the statements of the bill, either as to the title or to the
parties.  (3) Where a bill of injunction is filed to stay the execution of a
judgment, it is improper to make the clerk, who issues the execution, and the
sheriff who has received it, parties defendant. They are mere ministers of the
law, and have no interest in the controversy.  (4) If the sheriff has notice
of the injunction, it is a contempt to him to proceed with execution; but to
that purpose a notice is sufficient, and a subpoena should not be served on
him.

Appeal from an interlocutory order in this case dissolving the injunction,
which had before been granted, made at the Fall Term, 1846, of Henderson
County Court of Equity, his Honor, Judge Caldwell, presiding. This was an
injunction bill. The bill states that William Mills died intestate, leaving
seven children, and that the said heirs met, and by common consent divided the
personal estate of said intestate, by which division a boy named George and a
girl named Nelly, fell to the share of Asa Edney; that the value thereof
exceeded one-seventh part of the said personal estate, and that the said Edney
then executed four forty-five dollar bonds to the other heirs for the
overplus, and that all of them have been paid by said Edney's executor,
namely, the plaintiff, Ambrose J. Edney"  Before continuing with the courts'
opinion, I might interject here that Asa Edney, his son-in-law, had died
during 1842, and his sons Ambrose and Calvin Edney were the Administrators of
Asa's Will. Continuing, "The bill further states that some time thereafter,
Elisha King and Benjamin King obtained letters of administration of the estate
of the intestate William Mills, and thereupon required all the heirs to bring
forward the property of the estate and have it sold; upon which Nelly was
surrendered by Asa Edney (the boy George having been sold by him), and Nelly
was then sold by the administrators and bought by Asa, he being the highest
bidder at the price of $362, for which he gave his bond, with Samuel J. Edney,
one of the plaintiffs, as his surety.

The bill further states that at the execution of the bond, the administrators
to whom it was payable, expressly agreed that if the division as made by the
heirs was ever rendered valid by common consent or otherwise then the bond
should be cancelled, and that it was upon that agreement and condition the
bond was given. That afterwards Elisha King, surviving administrator, agreed,
together with the heirs and distributees of William Mills, to refer the whole
matter to B. Shipp and Joshua Roberts, and that said award has been made and
confirmed without allowing a credit of the $362, and that they have failed to
allow Edney credit for the four $45 bonds, which he had long ago paid for said
girl. The bill then charges that the said award was a final settlement of the
estate and that upon settlement the bond for $362 should have been surrendered
as the estate of William Mills is freed from debt, and there is no necessity
for collecting it, and that it ought not to be collected, because the girl
Nelly was the absolute property of Asa Edney, and therefore he received no
value for the said bond, but making the sale and taking the bond by the
administrators was a fraud upon the said Asa. The bill then states that
judgment at law had been obtained on the bond by the surviving administrator
against the plaintiff Ambrose J. Edney, the executor of the principal obligor,
Asa Edney, and against the surety, Samuel Edney, who is the other plaintiff,
upon which the plaintiff at law threatens to levy the debt and costs.
Thereupon it prays process of subpoena to the defendants, together with the
sheriff and the Clerk of the Superior Court of Henderson County, commanding
them to appear, and that the clerk and sheriff be enjoined from all further
attempts to collect said iniquitous judgment and for further relief. An
injunction was granted by a Judge out of Court, as prayed in the bill.

The clerk and the sheriff put in answers, in which they state that they have
no interest in the subject-matter of the controversy, nor any agency touching
the same, except only in their official capacities to issue and execute the
process of the Court. Elisha King, the surviving administrator of the
intestate, William Mills, appeared as a defendant in the cause and put in an
answer. It states that "after the death of the intestate, his children or a
part of them supposed that a paper-writing, which purported so to be, was his
last will and testament, and that they met and made a partial division of the
estate among themselves, but that afterwards the paper was offered for
probate, as a will, and upon a caveat, such proceedings were had, that the
said paper was duly found not to be the will or testament of William Mills,
deceased, and the Court pronounced that he died intestate, and thereupon
granted administration to this defendant and to one Benjamin King, since
deceased." The answer further states that the administrators demanded
different parts of the personal estate of the intestate from the persons who
had the same in possession; but that several of them refused to surrender the
negroes they had received; that Asa Edney had sold the negro George for $1
,200, and of course did not surrender him, but did surrender Nelly; and that
at a sale made by the administrators he purchased her and gave the bond for
the price stated. But the answer denies that the bond was given on any
condition or agreement, other than what appears on its face. It states further
that at the request of the next of kin of the intestate, and to save the
expenses of many suits, which the administrators were about to bring for the
property not surrendered to them, they agreed to a reference, proposed by the
next of kin, to Messrs Shipp and Roberts, to make a full and final settlement
and division amongst the next of kin and awarded accordingly; and that by the
award this defendant was charged with the payment of certain sums of money,
and that the fund for the payment thereof consisted of this bond of Asa Edney
and of others, which were taken at the sale, and remained in his hands
uncollected. The defendant states that he is informed by the arbitrators that
they did take into their consideration the four notes or bonds for $45 each,
given by Asa and gave him credit therefor in making the award; and the
defendant believes it to be true, and avers that the plaintiffs have no just
claim to any credit on the bond and judgment, but that the whole debt is
justly due.

Isaac B. Sawyer and his wife Mary and several other persons put in answers in
which they state themselves to be grandchildren of William Mills; but they do
not set forth anything material in other respects. Upon the answers being put
in the defendants moved to dissolve the injunction; and thereupon by leave of
the Court, the plaintiff filed as an exhibit a copy of an award by the
administrators, named in the pleadings. It recites, that E. King, the
administrator of William Mills and John Mills, Marvel Mills, Samuel Edney and
his wife, Asa Edney and wife, George Jones and wife, P. Myers and the heirs of
Mourning Lewis had referred to them to settle the said estate and to make an
award upon the same; and they award as follows: That there is found in the
hands of E. King the sum of $678.93; In the hands of M.M. Edney, former
administrator $435.00; Amount against P. Brittain, for which we have awarded
$901.00; George Jones $106.19; A.J. Edney $14.48; Marvel Mills $12.71. Total
$2,145.51.  Out of which we have allowed the administrator $300.40, leaving in
the hands of the administrator for distribution the sum of $1,845.11, which
sum we direct and award that he pay the following distributees: To the heirs
of Mourning Lewis $912.66; to P. Myers $740.46; To the representatives of John
Mills $173.63; to Samuel Edney $8.61.

Upon the pleadings and exhibit, the court allowed the defendant's motion and
dissolved the injunction with costs to the defendant, E. King, reserving the
question of costs, as to the other defendants, until the hearing. From this
decree an appeal was allowed to the plaintiffs.  Attorneys, Edney for the
plaintiffs; Francis and N.W. Woodfin for the defendants.

The Edney attorney was Baylus M. Edney,  son of Reverend Samuel Edney.
Reverend Asa Edney had married William Mills' daughter, Sarah' Samuel had
married Sarah's sister Eleanor. The courts' decision indicates that a faulty
case had been prepared by the plaintiffs' attorney.

JUDGE THOMAS RUFFIN, presiding over the North Carolina Supreme Court at
Morganton, wrote the majority decision.

If the plaintiffs had merits, the bill is so imperfectly framed, that the
Court could not afford them the relief they ask, or any part of it. The
supposed testator, Asa Edney (for neither his death nor will are stated in the
bill), purchased from the defendant King, the administrator of William Mills,
a negro belonging to the estate and gave his bond for the price; and the
plaintiffs in this suit seek to be relieved from paying it. On what ground
they consider themselves entitled to the relief, it is not easy to say upon
their bill. It may be supposed, perhaps, that Asa Edney is entitled to a part
of the estate of the intestate, William Mills, and we conjecture that it was
intended so to state in the bill. But there is no such statement in it.  The
bill begins by showing that the intestate died, leaving seven children; but
who they were, or that Asa Edney was one of them, nowhere appears. From the
difference in the names, the presumption is, that Asa Edney was not one of the
seven children.

Then, it may be that he married a daughter of the intestate, and that is
probably the truth, and we would so presume, if the Court could proceed to
determine rights upon such loose guesses. But that can not be done; and
therefore, every person who claims to recover either at law or in equity, must
show a title in the pleadings, and that ought to be done by distinct averments
or in plain affirmative statements. It can not be assumed, that Asa Edney was
one of the intestate's seven children, or entitled in right of one of those
children, or otherwise, to a share of his estate; since there is no such
allegation in the bill. It is true, that the bill is entitled "the bill of
complaint of Ambrose J. Edney, executor of Asa Edney, deceased, and of Samuel
J. Edney against Elisha King, administrator of William Mills, deceased, and
Marvel Mills, P. Myers, William S. Mills, George Mills, Louisa Camp, John
Camp, John Dillen, Winsom Edney, Sarah Edney, William J. Lewis (and upwards of
twenty other persons of different names), heirs-at-law and legal
representatives of William Mills, deceased." But that in no degree helps the
plaintiffs case.

For, in the first place, the title of a bill is no part of it. It is merely a
mode of conveniently denominating a bill or cause, and it can not be deemed a
part of the statements of the bill, either as to the title or the parties. But
if it were otherwise, still no title would appear in Asa Edney, because the
persons named in the title of the bill as defendants, are called "heirs-at-law
and legal representatives of William Mills, deceased," thus excluding Asa
Edney from that character. Moreover, instead of seven next of kin, there are
here upwards of thirty named as such. The bill, therefore, clearly could not
be maintained for any purpose, as this objection goes to the whole foundation
of the plaintiff's equity. For it does not appear to what share Asa Edney was
entitled, nor, with any certainty, that he was entitled to say, and if he was
not, as one of the intestate's next of kin, entitled to a seventh part of the
estate, there is no ground whatever for the title set up for him to the negro
girl, Nelly, nor any reason why he should not pay the sum bid for her.  But if
the allegations of the bill upon that point had been formal and distinct, and
it were admitted that Asa Edney was, as one of the next of kin, entitled to
one-seventh part of the estate of the intestate, yet the plaintiffs can have
no relief on this bill, because it in no manner appears upon it, either by
particular or even general allegations, that he did not receive his seventh
part, over and above the amount of the bond given for the price of Nelly. It
is admitted that he got George (of the value as stated in the answer of $1
,200), and that he paid $180 to some persons claiming to be of the next of
kin, which left $1,020 in his hands; and there is no allegation that a full
share amounted to more than that sum. Indeed there is no statement of
particulars or value of the estate, nor consequently, of the amount of the
distributive share. It is said, indeed, that the two negroes, George and
Nelly, exceeded a seventh part by the sum of $180, but no value is set upon
Nelly, and therefore the whole matter is still left in obscurity.

If, however, it be taken as an inference from the statements of the bill, that
George and Nelly, after deducting $180 from their value, were equal to a share
of one-seventh, and that Nelly was estimated in the division at the sum of
$362, for which she was afterwards sold; still the matter of the bill is too
defective to authorize any decree for the plaintiffs. For the share of Edney,
for which he received those negroes, was calculated according to the estimate
of the estate, as made by the parties to that division. Now it is plain that
objections were raised to that by the other persons interested, either because
the estate was erroneously estimated, or because the division ought to have
been made as upon an intestacy, whereas it was made upon the footing of a
will, or for some other reason; and that a controversy existed in the family
as to the proper principle of division, in consequence of which an
administration was taken on the estate, that it might be distributed according
to the due course of law.

Under that administration, Nelly was sold and purchased by Asa Edney; and the
administrator was about to bring suits, for other property not delivered to
him by the several next of kin, including, no doubt, the negro George, which
Edney had converted. Under these circumstances, the bill states that, when
Edney gave his bond, the administrator agreed that, if the previous division
was valid or should ever be rendered so by the general consent of the next of
kin or otherwise, then the bond for the price of Nelly should be canceled. If
this agreement be relied on as the ground of relief, it behooves the plaintiff
to show, either that the division was in truth according to the rights of all
the next of kin; or that it was subsequently confirmed or made valid by an
agreement of the next of kin, or in some other manner. To show the first, no
attempt is made, and we are at much loss to determine whether the bill meant
to charge the latter. It states, that the administrator and the next of kin -
called in the bill "heirs and distributees" - agreed to refer "the whole
matter" to two arbitrators. What the "whole matter" thus submitted was, we are
not told, but are left to conjecture. Certainly, however, that reference can
not be construed into "a general consent" of the next of kin "to render the
previous division valid"; because, if the reference related to this estate at
all, it must have involved a settlement of the administrator's accounts, and
the proper distribution of the estate among the next of kin.

Therefore the plaintiff's rights, if an award was made, must depend upon the
award in his favor. In other words, when he calls upon the administrator to
deliver is bond or discharge him from the payment of it, he must show, as the
ground of that relief and upon the agreement, which the bill states to have
been made when the bond was given, that the arbitrators awarded expressly,
that the administrator should deliver up the bond, or at the least, that they
confirm the division which had been made, or awarded that Nelly belonged to
Asa Edney, and that by mistake, he bought his own property. Now the bill
states not an award to that effect; and indeed, although it says "an award was
made and confirmed, and that it was a final settlement of the estate", no part
of its contents is set forth in the bill, as awarding anything to the
plaintiffs touching the subject of this suit. On the contrary, it rather
complains of the award, because in making it, the arbitrators did not allow
Edney a credit for the $362, and also (as we suppose the bill to have meant)
because they did not allow him a credit for the $180. The bill, therefore,
instead of setting up a title under the award, rather impeaches it by
insinuation. But as a bill to impeach an award, it is entirely defective; for
it neither states the award, nor any particular error therein, nor any fraud
in the arbitrators, nor mistake by them, either as to manner of law or fact -
not even alleging that these claims were set before the arbitrators, or made
known to them, nor assigning any reason, why they were not.

Upon the fact of the bill, therefore, the plaintiffs have no case for relief.
But if the bill had properly charged the matter, which perhaps, the party
wished to set forth, the merits of even that case are completely disposed of
in the answers. The administrator positively denies that there was any
condition or agreement, that the bond should be surrendered in any event; and,
moreover, he states that the arbitrators did take into consideration the $180
which Edney paid, and also charged the administrator with Edney's bond for
$362, and it was a part of the fund in his hands, which he was required by the
award to distribute among the other next of kin.

So, in every point of view, the dissolution of the injunction with costs was
right; and we can only express our regret, that costs had not been given
immediately to the sheriff and clerk. Those persons were most improperly made
defendants, as they are merely ministers of the law, and have no interest in
the controversy. Upon notice of the injunction it would, it is true, have been
a contempt in the sheriff to proceed on the execution; but to that purpose
notice would have been sufficient, and it was very wrong to serve a subpoena
on them and put them to the expense of appearing in the cause, and putting in
answers as defendants. This interlocutory decree is affirmed with costs in
this Court, and this must be verified to the Court of Equity of Henderson
County.

PER CURIAM. 
Ordered Accordingly, in favor of Elisha King.

The full case file, consisting of more than 300 pages, is preserved in the
North Carolina State Archives in Raleigh. This has been a summary of those
proceedings.