Gregg Bonner's Brown Family
Gregg Bonner's
Brown Family
Almost all I know about my Brown family comes from the court case shown below, and regards Lot 207.

Daniel Keith v. John C. Willingham, et al.
Decisions of the Superior Courts of the State of Georgia, part II.
containing decisions rendered during the year 1842-3.


151
Daniel Keith v. John C. Willingham, et al.
1. Chancery Practice Decree in Favor of Person Dying Pendente Lite A decree in Chancery obtained in favor of a person who died pendente lite. is void and may be set aside by a subsequent original bill.
2. Same Decree in Favor of Fictitious Person Persons Absent and Unheard of. So of a decree in favor of persons who never existed or have been beyond seas unheard of for more than seven years.
3. Same Same Same Conclusive as to Other Parties. But as to other parties such decree is conclusive and cannot be reversed by a new original bill.

This is a bill filed by complainant against the defendants praying an Injunction upon the following state of facts The bill charges that in the year 1829 one Nancy Brown died intestate possessed in her own right of a lot of land [see above maps] to wit lot No 207 in the 11th district of formerly Troup now Meriwether county and that she left as her heirs and next of kin Lucretia who had intermarried with Henry Knight; Sarah who had intermarried with John C Willingham Nancy who had intermarried with Colom Copland Elizabeth Brown Rebecca Brown George Brown and William Brown children of William Brown deceased and Charity Brown the widow of the said William who was the son of the said Nancy Brown and that complainant had been informed that the said Nancy had another child by the name of Elizabeth who had intermarried with Stephen Vickers who had long since removed from this State and had not been heard of for many years and that complainant after the death of the said Nancy Brown had become the purchaser for a valuable consideration of the entire interest of the said John C Willing ham and Henry Knight in and to said lot of land to which they were claimants as heirs and next of kin in right of their wives the interest of the said Willingham and Knight having been levied on and sold at sheriff's sale And that complainant took upon himself the administration of the estate of the said Nancy Brown for the purpose of securing the interest in said

152 estate which he had purchased as aforesaid and that he sold said lot of land in his character of administrator for the sum of eight hundred dollars And that a bill was filed at the instance of the said John C Willingham and as he complainant believes without any authority from the other heirs of the said Nancy Brown against the said complainant as administrator as aforesaid in the Superior Court of Meriwether County requiring him to account for and distribute the assets of said estate And that upon the hearing of said case the jury found a verdict against complainant as administrator as aforesaid for the whole amount of the proceeds of the sale of said lot of land after deducting the expenses of the administration and the share of one of the distributees which he had paid upon which finding a decree was rendered and a fieri facias issued thereon which was proceeding to sell the property of complainant It is further stated that the children of William Brown were represented in said bill as minors and appeared in said case by the said John C Willingham as their next friend and that he has removed from the State and is wholly insolvent and that complainant believes that his security on his bond is also insolvent Complainant further states that he had been informed by said Willingham that Nancy Brown had a child by the name of Elizabeth who intermarried with Stephen Vickers and that he so believed and so admitted in his answer to said bill But that he has since made the most diligent enquiry amongst those acquainted with the family and cannot ascertain except from the said Willingham that there ever was such an individual as Elizabeth Brown daughter of the said Nancy Brown or that any individual of the name of Vickers at any time intermarried with one of the children of said Nancy Brown And that complainant believes and charges that John C Willingham fraudulently represented that the said Vickers and wife were distributees of said estate to enable him to control and enjoy an interest in said estate to which he was not entitled And it is further charged that if there ever were such persons as Vickers and wife thev have long since removed from this State and have not been heard of except through said Willing ham for more than twenty years and that he believes they had departed this life before said verdict and decree were rendered It is further charged that Henry Knight one of complainants in said bill departed this life during the progress of said cause and before any verdict or decree was rendered;
153 and that his legal representatives were not made parties And also that Nancy Copland died during the pendency of said suit and before the verdict and decree and that her legal representatives were not made parties and that said execution is proceeding illegally and so far as Copland and wife Knight and his wife and Vickers and wife are concerned is absolutely null and void in as much as two of them had died during the pendency of the suit and that Vickers and wife if there ever were such persons have been absent without being heard of for more than seven years The bill prays that said verdict and decree rendered in said case may be set aside and complainant permitted to retain in his hands the distributive shares of Willingham and Knight and that the Sheriff be enjoined from proceeding with said fi fa A motion is now made to dissolve said injunction upon the ground that there is no equity in said bill which would authorise the granting or continuing said injunction This then is in the nature of a demurrer and for the purposes of the argument all the charges in the bill must be taken to be true For the defendants in the bill it is contended that this bill cannot be maintained under the present state of facts for the reason that it seeks to set aside a decree of the Court of Equity which it is contended cannot be altered reversed or set aside in any way except on a petition for a re hearing and when the decree has been enrolled which it is contended is the case here by a bill of review Authorities cited 2 Maddox Ch 453 2 Johnson's Ch R 205 2 Maddox Ch 463 It is further contended that this is not a bill of review and if it were the facts stated are not such as would authorise the granting a bill of review As a bill of review can only be maintained for errors in matters of Law apparent on the face of the bill or for newly discovered matter which has come to the knowledge of the party subsequent to the decree Mitford's P1 127 2 Maddox Ch 538 3 John Ch R 126 On the other hand it is admitted by complainant that this is not a bill of review and that the facts are not such as to sustain such a bill But it is contended that it is an original bill the object of which is to set aside the decree rendered in the former suit upon the ground that said decree is absolutely void it having been rendered in favor of parties who were dead at the time it was rendered Authorities 2 GA DEC 152 153 643 Keith v Willingham et al ties relied on the case of the Executors of King v John and Isaac
154 Bailey Charlton's R 190 9 Porter's Ala R 178 1 Ala R new series 712 725 In Mitford's P1 93 I find this doctrine If a decree is obtained by fraud it may be impeached by original bill without leave of the Court and it seems that it is not confined to cases of actual fraud but extends also to cases of fraud arising by implication And in the case of Giffard v Hort 1 Schoales & Lefroy 386 it is stated that a decree obtained without making parties of those whose rights are affected thereby is fraudulent and void as to those parties and a purchaser under it with notice of the defect is not protected thereby Let us then examine the several grounds upon which it is sought to set aside this decree with reference to these authorities First then as to Knight and his wife the charge is that Knight died pending the suit and also that his interest in the land the subject matter of the litigation had been sold and purchased by complainant As to the first ground it will be recollected that the suit was in the name of Knight and wife for a right which belonged to the wife and the authority as laid down in Mitford's P1 59 Story's Eq P1 293 and 6 John Ch R 132 is that in a case of this sort the suit does not abate on the death of the husband As to the other ground if in fact there had been such a sale of Knight's interest as to divest the title of his wife which is considered very doubtful there is no reason assigned why the party did not avail himself of this defence on the former trial and having neglected to do so it is now too late aud he is precluded by the decree The only ground urged against the decree so far as the interest of Willingham and wife is concerned is that his Willingham's interest had been sold at Sheriff's sale and this being a matter which had happened before the decree the same rule applies The ground upon which the decree is resisted so far as the children of William Brown are concerned is that they were represented in said suit by the said Willing ham who it is alleged has removed from the State and is insolvent and it is believed his security is also insolvent If these facts had existed and had been made apparent to the Court when the suit was commenced or during its pendency it might have been a sufficient reason for having him
155 removed and another more trustworthy appointed in his place But I can not conceive that this forms any valid objection to the decree as it is not pretended they were not justly entitled to the sum decreed in their favor And it does not lie with the complainant to object to paying over the money on this account as his interest can not be affected by it Next as to Copland's interest in said decree the charge is that Nancy his wife who was the meritorious cause of the suit died pending the suit and that therefore the suit so far as she was interested abated and there being no plaintiffs as to her interest no decree could be rendered in her favor To this it is replied that Chancery will not relieve against a judgment at law unless the defendant in the judgment was ignorant of the fact in question pending the suit or unless he was prevented from availing himself of the defence by fraud or accident or the act of the opposite party unmixed with negligence or fault on his part This is a general rule But I apprehend it does not apply to a case where there are no parties to the suit The presumption is that the party knows who are the proper plaintiffs and ought to know when one of them dies and if the suit is carried on without proper parties before the Court and a decree is rendered it is at his own peril and the defendant could not be protected in paying off a judgment under such circumstances for there being no party before the Court no one would be authorized to give a discharge It will not do to say that a payment to the attorney would protect him for no one can be the attorney of a dead person I am therefore of opinion that the bill is well founded so far as Nancy Copland's interest is concerned We next come to consider the charge as to Vickers and wife which is that there are no such persons in existence or that if there ever were such persons they had been absent from this State for more than seven years without being heard from and that they were dead before said decree was rendered and that their names were fraudulently introduced into said bill by said Willingham and represented as distributees for the purpose of enabling said Willingham to enjoy a share in said estate to which he was not entitled Suppose then that there are no such persons what then would be the consequence Why that said estate would be subject to be divided into
156 four shares instead of five and the other distributees to wit Willingham and wife Knight and wife William Brown's children and the representatives of Nancy Copland would be entitled to the portion assigned to Vickers and wife in the decree and they are all capable of receiving and receipting for the same except Nancy Copland Therefore so far as these other parties are concerned I can see no good reason for reversing the decree The decree has specified the amount to which each of said complainants is entitled The amount decreed to Copland and wife is one hundred and fifty five dollars and thirty cents and the like sum to Vickers and wife This being the case the Injunction can be dissolved as to the shares of some of the parties and retained as to the others so as to prejudice the rights of none It is therefore ordered that the Injunction granted in said case be dissolved so far as to authorise the execution issued upon the said decree to proceed to collect the several sums due to Willingham and wife Knight and wife and the children of William Brown and three fourths of the amount due to or decreed to Vickers and wife And that said Injunction be retained so far as to prevent the collection of the sum decreed to Copland 644 1 Georgia Reports Annotated 2 GA DEC 154 158 and wife and one fourth of the sum due Vickers and wife until the further order this Court And inasmuch as it appears that the said John C Willingham the friend of the children of William Brown deceased has removed from this State is represented to be insolvent and his security also being represented to be insolvent and is also alleged to have removed from State since the filing of said bill it therefore ordered that such portion of said decree as is due to the said children be withheld from the said John C Willingham that the same when collected be paid into the office of the Clerk of the Superior Court of said County subject to be paid out to the lawful guardians of said children
Text extracted from:
Georgia reports, Charlton -65 Georgia, by Thomas Johnson Michie (Michie Co., 1903), pages 642-645.
Courtesy of Google Books
Last update: 14 July 2013