Edney v. King

• Decision Date: 31 August 1847
• Citation: 39 N.C. 465,4 Ired.Eq. 465
• Court: North Carolina Supreme Court
• Parties: AMBROSE J. EDNEY, EX'R. et al. v. ELISHA KING, AD'R. et al.

4 Ired.Eq. 465

39 N.C. 465

AMBROSE J. EDNEY, EX'R. et al.

v.ELISHA KING, AD'R. et al.

Supreme Court of North Carolina.

August Term, 1847.

Every person, who claims to recover, either at law or in equity, must shew a title in the pleadings, and that ought to be done by distinct averments or plain affirmative statements.

The title of a bill is no part of it. It is merely a mode of conveniently d?? nominatiug a bill or cause, and it cannot be deemed a part of the statements of the bill, either as to the title or the parties.

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.

If the sheriff has notice of the injunction, it is a contempt in him to proceed with execution; but to that purpose a notice is sufficient, and a subpœna 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 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.” 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 the said Nelly was surrendered by the said Asa Edney (the boy George having been sold by him,) and the said Nelly was then sold by the administrators and bought by the said 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 said 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 said bond should be cancelled,” and that it was upon that agreement and condition the said bond was given. The bill further states, 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 said $362, and, if so, that they have failed to allow said 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 said estate, and that, upon said settlement, the said bond for $362 should have been surrendered,” as the estate of said William Mills is freed from debt, and there is no necessity for collecting it, and that it ought not to be collected, because the said girl Nelly was the absolute property of the said 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 subpœna, “to the said defendants, together with the sheriff and the clerk of the Superior Court of Henderson County, commanding them to be and appear, &c., and that the said clerk and sheriff be injoined 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 the said 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 $1200, 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 in the bill. 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 of the estate amongst the next of kin; and that it is true, that the said arbitrators made a settlement and division amongst the next of kin and awarded accordingly; and that by the said 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 the said Asa, that are mentioned in the bill, 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 grand-children of William Mills, deceased, or otherwise related to him; but they do not set forth any thing 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 arbitrators, named in the pleadings. It recites, that E. King, the administrator of William Mills, and John Mills, Marvell Mills, Samuel Edney and 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 thereupon they award as follows, to-wit:

+-----------------------------------------------------------------------------+
                ¦

“That there is found in the hands of E. King,       ¦$678 93¦
                ¦administrator, the sum of                                            ¦       ¦
                +---------------------------------------------------------------------+-------¦
                ¦In the hands of M. M. Edney, former adm'r.                           ¦435 00 ¦
                +---------------------------------------------------------------------+-------¦
                ¦Amount against P. Brittain, for which we have awarded                ¦901 00 ¦

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