HENDERSON COUNTY, NC - COURT - Probate Records of Balis (Baylus) McKendrick Edney --------------¤¤¤¤¤¤-------------- Confederate Captain Balis (Baylus) McKendrick Edney was shot to death by angry neighbors on his own land, on the 4th of April 1865, only 8 days before General Lee's surrender at Appommattox. Following are records of his estate probate which are to be found in the records of the North Carolina State Supreme Court, 13-1/2 years after Capt. Edney was killed, between January and June 1879: _____ North Carolina State Supreme Court, January Term, 1879; 80 NC 82: RUFUS EDNEY, Administrator [of the estate of Balis M. Edney], v. THOMAS A. EDNEY and others. Practice -- Judicial Sale. Rufus Edney is Samuel Rufus Edney, son of the Reverend Samuel Edney, Jr., as are "Thomas A. Edney -- and others" -- , all of whom are brothers of the deceased, Baylus M. Edney One who, as commissioner of the Court, sells the real estate of a decedent for assets, is understood to offer an absolute and indefeasible title; and the purchaser will not be compelled to pay his money and take a title substantially defective, unless the sale be made of an estate or interest short of the entire title, and so mentioned in the decree, or clearly implied from the nature of the sale. Petition filed before the Clerk and tried, upon issues joined, at Fall Term, 1878, of Henderson County, before Avery, J. This was a petition filed by Rufus Edney, administrator of Baylus M. Edney, for a license to sell the real estate of his intestate, including a tract called the "Myers Farm" and was begun by summons returnable in the office of the Clerk of the Superior Court of Henderson County, and after all the heirs at law of the intestate were regularly made parties and issues of fact joined in the pleadings, the cause was transferred to the docket of the Superior Court for trial of the issues at term. At Fall Term, 1871, of the Superior Court of Henderson, by consent of all parties, it was referred to R.B. Vance to state and report to Court an account of the administration of the estate by the plaintiff, and the account was taken and reported to Court as ordered. it appearing from the said account that there was a necessity to sell the real estate of the intestate, it was decreed at Fall Term, 1875, that the plaintiff have license to sell the same, and amongst the sales made he reported to the Court a sale of the Myers farm in four parcels -- two to W.G. Rice at $1,920, and two to O.H. Moss at #1,375, of which sums 20 per cent was paid down in money on the day of the sale and the residue secured by the bonds of the purchasers respectively, with good surety, payable at twelve months, and on report of sales filed, an order of confirmation was regularly made by consent of all parties. At the maturity of the bonds given by W.G. Rice and O.H. Moss, as above set forth, the plaintiff, as commissioner, put the same in a course of collection by instituting actions thereon, and after the pleadings were filed and issues joined by consent of parties the two actions were incorporated into the cause in which the license to sell was obtained, upon the agreement that they were to be taken and treated as motions in that cause, and the result of the motion in one to be accepted as the result in the other. On the hearing of the motion the purchasers resisted judgment against them on the ground of a defect of title in the heirs of B.M. Edney, and on the further ground of false representations by the plaintiff as to the quantity of interest in the Myers farm owned by his intestate, made at the time of the sale, and inducing them to become bidders. It was admitted at the hearing of the motion that B.M. Edney, the intestate, owned at his death only one- fifteenth of the land in question, in fee, three out of five life-estates therein, and there being a conflict of evidence touching the alleged false representations made by the plaintiff at the time of the sale, his Honor made and submitted certain issues to a jury as to that matter, who found that the plaintiff represented at the sale that his intestate owned and he was then selling two undivided thirds of the Myers farm; and on this response of the jury his Honor adjudged that the order of confirmation theretofore made be vacated, and the sales to Rice and Moss be set aside and the bonds sued on the cancelled and returned to the purchasers. He further adjudged that plaintiff pay back to said Rice and Moss the amounts paid by them as a cash payment on the day of the sale, with interest thereon; and from this judgment the appeal is taken. J.H. Merrimon for plaintiff. M.E. Carter for defendants. _____ Justice Dillard wrote the majority decision: We concur in the judgment of his Honor. In sales under a decree of the Court, a sale made by a commissioner appointed for that purpose ascertains a proposer merely on the terms specified in the decree, and on compliance with the terms of sale he acquires the right to be reported to Court on his proposal, and when the report is made and a confirmation is adjudged by the Court the bargain is struck and each party then occupies the status to be entitled to have a specific execution of the contract as against the other, that is to say, the vendors, or holders of the title, making the sale through the agency of the Court, by the order of confirmation have the right to call on the purchasers to pay the money and take the title, and the purchaser has the reciprocal right to call on the vendors to accept the money and execute title to him. On confirmation of the sale the orderly proceeding in equity was a rule on the purchaser to show cause against specific performance of the contract, and under our present system it is a motion in the cause for judgment on the bonds for the purchase-money. Under either system the purchaser is thus brought in and connected with the cause and has an opportunity to show cause, if any he have, against an order for specific performance under the equity system, or against the rendition of judgment on his bond for the purchase-money under our North Carolina system. In accordance with this practice, the two suits irregularly brought against W.G. Rice and O.H. Moss, after being put at issue, were by consent to be treated as motions in the cause still pending, in which the decree for the sale of the lands had been made. The purchasers being thus for the first time brought into Court, and having opportunity to show cause against the confirmation of the sale and its specific enforcement, had the liberty to defeat the motions for judgment by any matter or facts which on a regular bill in equity would induce a chancellor, in the exercise of a legal discretion, to decline to decrease specific performance against a vendee. Being brought into court in defense of the motion for judgment, the purchasers were found by the jury, on an issue submitted to them, to have purchased the Myers farm upon the representation by the plaintiff, the administrator of B.M. Edney, and the instrument of the Court, that his intestate was the owner of two undivided thirds of that farm. This fact, with the admission before the Judge that the intestate in truth and reality owned but one-fifteenth in fee, and three shares out of five for life in the land constituted the cause shown against the rendition of judgment. And the question is, How ought his Honor to have held these facts? A court of equity will not enforce specific performance of a contract where mutuality of performance cannot be had. And here, whilst the purchasers are proceeded against as able to pay for two-thirds of the Myers farm, it is admitted that the heirs of B.M. Edney own only one- fifteenth, in fee, and three shares out of five for life, and therefore they cannot be compelled to perform on their part. Again, specific performance will not be decreed if there has been willful misrepresentations by a party intreated and conducting the sale, reasonable relied on by the purchaser and constituting a material inducement to the contract. And here we have a false representation made by the plaintiff, who, from his access to the papers of is intestate, may be taken to know the extent of his title, and who, therefore may be reasonably relied on by the purchaser when he represents the quantity of interest to be two-thirds; and, under this state of things, it would be against good conscience to hold the purchaser to pay for the land. Besides these grounds influencing the discretion of a chancellor against a decree for the specific performance of the contract, it is settled in this State that in judicial sales a good title is to be deemed as offered, and the purchaser will not be compelled to pay his money and take a title substantially defective unless the sale be made of an estate or interest short of the entire title, and so expressly mentioned on the face of a decree or clearly implied from the nature of the sale. To this rule we fully assent as material to establish a confidence in sales made by authority of the Court and as conducing to beget fair competition of bidders. And we agree that the doctrine of "caveat emptor" should not apply to such sales, unless there is something in the face of the decree indicating a sale of some estate or interest defective, or less than a whole title, and thereby putting the purchaser on his guard and at his own risk. Tested by these principles, in this case it will appear that in the petition and decree a description is given of the land to be sold in language broad enough to impress the purchasers, if they were notified thereof, that the sale was of the whole title and not a fragment, and thereby they would be drawn in to bid upon the confidence that a court of equity would not take their money unless the thing bought could be effectually conveyed. We conclude, therefore, that upon the general doctrines of a court of equity above enunciated and upon the authority of the case of Shields v. Allen, the purchasers should have been released from their contract and put in status quo, as was decreed by his Honor, and that the lands should be sold again on terms indicating the situation and extent of the title proposed to be sold. No error. Affirmed. Continuation: North Carolina State Supreme Court, June Term, 1879; 81 NC 2: RUFUS EDNEY, Administrator, v. THOMAS A. EDNEY and others. Practice -- Interlocutory Order by Consent. An interlocutory order or decree entered in a cause by consent, can not be modified or altered otherwise than by the consent of both parties, except upon petition or motion in the cause, specifying imposition, fraud or other adequate cause going to the whole order or decree, and constituting such as would be ground to set it aside by a civil action in the case of a final decree. Motion to strike out a portion of a decree, heard at Spring Term, 1879, of Henderson County, before Gudger, J. See same case, 80 NC 81. Upon the certificate of the opinion of the Supreme Court, the plaintiff moved for an order to resell the premises mentioned in the pleadings, which motion was resisted, but the defendant moved to add to the decree in the cause in accordance with the opinion of the Supreme Court, that defendant should be reimbursed out of the proceeds of sale the amounts expended in the former purchase of the land, including taxes, etc., and the plaintiff desired that the rents and profits be included, when it was agreed that the defendant should have such decree, and an order for the sale of land was granted. On Friday evening of the same term of court, the counsel of both parties called upon the Judge and the defendant's counsel submitted the decree he had prepared when the plaintiff's counsel pointed out some objectionable features in the same. It was thereupon rewritten by defendant's counsel and the announcement made to the Judge that they had agreed upon the terms and requested the Judge to sign it by consent, which he did without scrutinizing it, because the decree had been agreed to, signed and filed by the counsel of the parties. On the next morning the plaintiff's counsel moved to strike from the decree that portion of it which directed the arbitrator to credit the defendants, Moss and Rice, with such sums as they, or either of them, had paid to get possession of the land purchased by them. This was objected to by the defendant, who then filed an affidavit by Moss, setting forth among other matters, that the rents and profits of the land which he undertook to buy at the sale, were not equal in value to the improvements put thereon by the affiant. The Court, after hearing the argument of counsel on both sides, declined to strike from the judgment the part objected to, and from this ruling the plaintiff appealed. No Counsel in this Court for plaintiff. Messrs. Reade, Busbee & Busbee for defendant. Opinion by Judge Dillard: In this cause an appeal was taken to, and decided by, this Court at last term, reported in 80 NC 81, wherein the decree of the Court below, setting aside a sale of land made by its authority to O.H. Moss and D.G. Rice, was affirmed and a certificate of the opinion directed to be issued. At the last term of the Superior Court of Henderson County, upon the coming down of the certificate from the Supreme Court, the cause stood for hearing, when the parties agreed upon and prepared a decree by consent, which was presented to and signed by the Judge and filed in the cause. At a later day, in the same term, the plaintiff moved to strike from the decree the clause which provided for the mode and manner of ascertaining the sum to be repaid to the purchaser, which was opposed, and his Honor having disallowed the motion, the present appeal is taken. The decree entered by consent was what is termed an interlocutory order, and the general rule is that such orders made in the progress of a cause are in the breast of the Court during the term at which they are passed, and may be altered in any respect, and also may be rescinded or modified at any time after the term and before the final hearing by a proper case being made out. The formal and orderly proceeding for recission or amendment of such orders is, by a viva voce motion in matters of course, which according to the course of the Court may be granted without hearing both sides; and by written petition in matters specially affecting the rights of other parties, so as to notify them of the grounds and enable them to show cause against the same and adduce evidence, if necessary, in opposition. This is the rule, it will be observed, when the order sought to be rescinded or modified is the order of the Court. But a decree by consent is the decree of the parties, put on file with the sanction and permission of the Court; and in such decree the parties acting for themselves may provide as to them seems best concerning the subject-matter of the litigation, and with the like sanction of the Court they may alter or amend from time to time, with the assent of all. But where a consent decree is entered, neither party can strike from it a material part of clause, nor have the aid of the Court to do so, without the consent of the other. For if it could be so done, then a party, by order of the Court, may be held to a decree with a material clause stricken out, without which he would never have amended to it, and one which, in its altered form, the Court could never have made. A decree by consent as such must stand and operate as an entirety or be vacated altogether, unless the parties by a like consent shall agree upon and incorporate into it an alteration or modification. If a clause be stricken out against the will of a party, then it is no longer a consent decree, nor is it a decree of the Court, for the Court never made it. There is no doubt a decree by consent, either enrolled or not, may be be rescinded or modified; but it is certain it can not be done by a petition to rehear, or on a bill of review for errors of law apparent, for the reason that it was not the judgment of the Court; and therefore, if erroneous, the error was not the error of the Court. In such case it would seem to be a necessity to seek remedy by an original bill under the old system, or by civil action under the new, on the ground of fraud and imposition and the like. Just so in the case of an interlocutory order after or during the term at which it was entered under our code system: The order, if entered by consent, could not be modified by striking out a clause against the consent of a party opposing, not for error as upon a petition to rehear, but it would have to be done by a motion or petition in the cause, specifying imposition or fraud, or other adequate cause, going to the whole order and constituting such as would be ground to set aside on an original bill in the case of a final decree. In this case, from the case of appeal made out by the Judge, the plaintiff moved to strike out a single clause of the decree by consent, and the other party not consenting, and no special ground of circumvention, imposition or fraud having been urged so far as we can see, there was no error in disallowing the plaintiff's motion. Judgment of the Court below is Affirmed, in favor of Thomas A. Edney. ___________________________________________________________________ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm This file was contributed for use in the USGenWeb Archives by: Marshall Styles ___________________________________________________________________