USA > North Carolina > Western North Carolina; a history, 1730-1913 > Part 38
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Following is an editorial which appeared in the Ashe- ville Gazette-News on that date:
"The last survivor of the Confederate Congress is no more. After a long and eventful life he has now been introduced to the mystery of the Infinite. He has read the riddle of life in the darkness of death. He knows it all now. The veil has been lifted and the contracted vision of earth has been expanded into the measureless profundity of eternity. Born, lived and died-behold the great epitome of man.
"The announcement of the passing of this historic figure from the familiar scenes of life will awaken sorrow in many hearts from the Blue W. N. C .- 26
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Ridge to the Unakas and the Great Smokies, for it was upon this ele- vated stage that his active life was spent. It was here that he began, a strong-limbed herder of cattle upon the verdant slopes and ghostly balds of the Cataloochee mountains, that career of activity that led him by successive stages to the bar, to the Confederate Congress, to the chan- cel-rail of the church, and to a warm place in the hearts of many of the best people of the State.
"Twelve years ago (1893) he stood on the Bunk mountain in Hay- wood county with a boyhood companion (Lafayette Palmer) and pointed out the place of the lick-logs where he had been wont to repair at inter- vals to tend the cattle pastured there; and, looking fondly around at the once familiar scene, said, as great tears streamed down the age-fur- rowed face, 'Good-bye, world!' That was his last visit to that sacred spot, and he said then that he would never look upon that scene again. Probably there was no tie that he had to break as age grew upon him that caused him a sharper pang than the parting from his beloved moun- tains. Certainly no man will be more missed by the people who live in these mountains than this man who bade them farewell so many years ago.
"Col. Davidson was a strong and rugged character. He had strong passions, strong muscles, strong intellect. He wore his heart upon his sleeve. He was open and above-board in his likes and dislikes. He was a true and faithful friend and a bold and unconcealed enemy. Meeting in mid-life the stormy discords of civil strife in a community rent asunder over the question of union or disunion, it was inevitable that he should have awakened animosities.
"But no man had any reason to doubt where Allen Davidson stood on personal, public or other questions. He spoke his mind freely and fearlessly. He hated shams and pretenses with holy hatred.
"From 1865 until 1885 he was admittedly the leader of the bar of what was then known as the Western Circuit, extending to Cherokee in the west and to Yancey and Mitchell in the north. There was no large case tried in this section between the years named in which he did not take a conspicuous and important part. Bold, aggressive and persist- ent, he stormed the defences of his opponents with all the dash and elan of a Prentiss or a Pinckney.
"Like a true poet he was 'dowered with the hate of hate, the scorn of scorn, the love of love.' His sense of humor was acute and never fail- ing. No adversity could quench it. Some of his remarks will live as long as the traditions of the old bar survive. He knew the life and hab- its of the mountain people better, perhaps, than any other man at the bar, and his speeches always pointed a moral and adorned a tale. Juries and judges were swayed by his intense earnestness, for he always made his client's cause his own.
"Even in his old age he 'was yet in love with life and raptured with the world.' He rejoiced in his youth as, with halting foot-step he went downward to the grave; but for him the evil days came not nor did the years draw nigh in which he said : 'I have no pleasure in them.' Strong, vigorous and healthy in mind and body, he enjoyed to the utmost the
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good things of life and made no hypocritical pretense of despising them. With splendid physical development he towered among his fellows like a giant, and to him fear was an alien and a stranger.
"He was a kind-hearted and charitable man, loving to give of what- ever he had of worldly goods, sympathy or kindly deeds. He was a faithful and affectionate husband, father, friend. A commanding and picturesque figure has passed from our midst."
His widow still survives him, and of his children the fol- lowing still emulate his name and example most worthily: Hon. Theo. F. Davidson, late attorney general of the State; Mrs. Theodore S. Morrison, Mrs. W. B. Williamson, Mrs. William S. Child, Robert Vance Davidson, for several terms attorney general of Texas, Wilber S. Davidson, president of the First National Bank of Beaumont, Texas
JUDGE JAMES L. HENRY. He was born in Buncombe county, in 1838, and received only such education as the schools of the county afforded. He was a son of Robert Henry and Dorcas Bell Love, his wife. He was elected Supe- rior court judge of the eighth judicial district in 1868, and served till 1878, having previously acted as solicitor for that district. 3? He was editor at the age of nineteen of the Asheville Spectator, served in the Civil War as adjutant of the 1st North Carolina Cavalry, and on Hampton's and Stewart's staffs, and as colonel of a cavalry battalion stationed at Asheville. He died in 1885.
COL. DAVID COLEMAN. He was born in Buncombe county February 5, 1824, and died at Asheville March 5, 1883. His father was William Coleman and his mother Miss Cynthia Swain, a sister of Governor D. L. Swain. He attended New- ton Academy and entered the State University, and just prior to graduation entered the Naval Academy at Annapolis, graduated, and served in the navy till he resigned in 1850, return- ing to Asheville and entering upon the practice of law. In 1854 he was the Democratic candidate for State senator, defeating Col. N. W. Woodfin, and was reelected in 1856, defeating Zebulon Baird Vance, the only defeat by the people Vance ever sustained. In 1858 Coleman and Vance were rivals for Congress, but Vance won. Coleman was one of the few men of this section who were secessionists, and was appointed to the command of a ship, but the delays in its fitting out tried his spirit beyond endurance and he entered the army, and was assigned to a battalion which afterwards became the
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39th North Carolina regiment, of which he was colonel. He resumed the practice of the law after the War, and was emi- nent as a lawyer. He was solicitor for a time and represented Buncombe county with Gen. Clingman in the State convention of 1875. He was a highly cultivated gentleman, a brave soldier and a lawyer above all chicanery. He never married. Gov. Swain was the first boy to enter the State University from the west, David Coleman was the second, and James Alfred Patton, a son of James W. Patton, the third. 33
JUDGE RILEY H. CANNON. The following extract is taken from his obituary, written by the Hon. Robert D. Gilmer, late attorney general of North Carolina: "He was born in Bun- combe county March 26, 1822, went to school at Sandhill Academy, was graduated from Emory and Henry College, Virginia; married Ann Sorrels October 18, 1850, to whom four children were born, namely, George W., once postmas- ter at Asheville, Eva, Lula A., and Laura. He was admitted to the bar in 1851, was appointed judge of the Superior court in 1868, and wore the judicial ermine during a troubled period in our State history. It was said, even by his political oppo- nents, that he never allowed it to trail in the dust of party rancor or become soiled by the stains of partial rulings. He was a member of the Methodist Church for thirty years. He died in that faith February 15, 1886. He was an honest man."
JACOB W. BOWMAN was born in what is now Mitchell county July 31, 1831, and died at Bakersville, June 9, 1905. He married Miss Mary Garland in 1850. He was admitted to the bar before the Civil War, and was appointed United States assessor of internal revenue by Gen. Grant April, 1869. Gov- ernor Russell appointed him Superior court judge in November, 1898, to fill an unexpired term. He received the nomination of the Republicans for the full term, but was defeated by Judge Councill, Democrat.
JUDGE GEORGE W. LOGAN. He was born in Rutherford county. He lived near the Pools at Hickory Nut Falls, where he kept a tavern. He was elected to the Confederate Con- gress and qualified in May, 1864. He was a Superior Court judge from 1868 till his death in 1874.
JUDGE JOSEPH SHEPARD ADAMS. He was born at Straw- berry Plains, Tennessee, October 12, 1850, and died at War-
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renton, N. C., April 2, 1911. His father was Rev. Stephen B. Adams and his mother Miss Cordelia Shepard. His father established a school at Burnsville, Yancey county, before the Civil War, which was known as Burnsville Academy. Joseph Adams was a pupil at this academy, and afterwards attended the school of Col. Stephen Lee in Chunn's Cove. He was graduated with honor from Emory and Henry College, Vir- ginia, in 1872. He studied law at Asheville under the late Judge J. L. Bailey, and was soon afterwards admitted to practice, opening an office at Bakersville. He was elected solicitor of the Eighth district soon after beginning practice and served in that capacity eight years. In 1877 he married Miss Sallie Sneed Green of Greensboro, N. C. She died November 16, 1901, leaving six children surviving. In 1885 he moved from Statesville to Asheville and began the prac- tice of law, which he continued till his election to fill out the unexpired term of the late Judge Fred Moore in 1908. He was elected for a full term in 1910.
ALFONZO CALHOUN AVERY. He was the son of Isaac T. and the grandson of Waightstill Avery, and was born at Swan Ponds near Morganton, Burke county, September 11, 1835. He died at Morganton, June 13, 1913. He attended Bingham School in Orange county and graduated from the State Uni- versity as A. B. in 1857, first in his class. He was admitted to practice before the county courts in June, 1860, and before the Superior courts in 1866. He was an officer in the Sixth North Carolina regiment, and later became major and adju- tant general of Gen. D. H. Hill's division. Later he was on the staffs of Generals Breckenridge, Hood and Hindman. In 1864 he was made colonel of a battalion in western North Carolina, was captured near Salisbury by Stoneman's army, and confined at Camp Chase till August, 1865. In 1861 he married at Charlotte Miss Susan W. Morrison, a sister of Mrs. "Stonewall" Jackson, and after her death he married Miss Sarah Love Thomas in 1889. She was a daughter of the late Col. W. H. Thomas of Jackson county. In 1866 he was elected State senator from the Burke district, and aided in building the Western North Carolina Railroad to Asheville and in locating the State hospital for the insane at Morganton. He was presidential elector in 1876, and in 1878 he was elected judge of the Superior court. In
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1889 he was elected associate justice of the Supreme court, and resumed the practice of his profession in 1897, at Mor- ganton, and was active till his death. In 1889 the State Uni- versity conferred upon him the degree of doctor of laws, and for more than twenty-five years he was a ruling elder of the Morganton Presbyterian church.
NOTES.
1A sketch of the judges of this State to 1865 will be found in the fourth volume of Battle's Digest, by W. H. Battle, Esq., and in Vol. II, Rev. St. N. C., p. 527 et seq., is a "Sketch of the Judicial History of North Carolina," with a list of the judges and attorney generals since the adoption of the constitution. It also contains a sketch of the judicial procedure under the proprietary government. 103 N. C. Rep. has history of Supreme court.
"Potter's Revisal, p. 281 and p. 1050.
"Ibid., p. 297.
Ibid., p. 887.
"Chief Justice Pearson is said to have pronounced Judges Leonard Henderson and John Hall the most profound jurists ever in North Carolina.
"Dropped Stitches.
"Potter's Revisal, p. 1039.
"Battle's Digest.
"Dropped Stitches, pp. 51-52.
"Ibid., pp. 52-53.
"Mr. McGimpsy was one of the ancestors of Judge Jeter C. Pritchard of Asheville. "Ashe county record-not paged.
""Soon after the formation of one of the newer counties Judge Boykin gave a defend- ant his choice between thirty days in jail and one week at the only hotel in town. The defendant chose the jail. This was since the war, however.
11Recollection of Hon. J. H. Merrimon and Dr. T. A. Allen, Sr.
1ªAsheville's Centenary.
1.Thomas Henry also was a soldier of the Revolution, and although he died soon there- after, his name appears as a pensioner. Col. Rec., Vol. XVII. p. 217, where it appears that, he was paid through A. Lytle £60, 158, 8d, according to the " Abstracts of the N. C. Line"" settled by commissioners at Halifax from September 1, 1784, to February 1, 1785. He fought at Eutaw Springs.
14"I have myself heard my grandfather Michael Shenck, of Lincolnton, N. C., speak of Mr. Henry as ' a great land lawyer'." D. Schenck, Sr., March 28, 1891, in note to "Nar- rative of the Battle of Cowan's Ford," published by D. Schenck, Sr.
15He said he asked his father what the shouting was about, and he answered that "They are declaring for Liberty." W. L. Henry's affidavit filed with Mecklenburg Decla- ration Committee in 1897.
1ªCol. A. T. Davidson in Lyceum, p. 24, April, 1891.
17 Asheville's Centenary.
1Ibid.
1ºIbid.
10According to Judge James H. Merrimon, Hillman and Dews lived at Rutherford- ton. He does not know the given name of Mr. Hillman, but states that Mr. Dew's was Thomas, and that in crossing the Green river he was drowned while yet a very young man, not much if any over twenty-five years of age. He says that the late Mr. N. W. Woodfin considered Dews the ablest man in the State of his age.
"!The reference is to 1898, the monument having been completed in that year
?"The same is true of Governor Swain, Generals Sevier, Waightstill Avery, the two McDowells, Rutherford, Shelby, Pickens, and others of Revolutionary fame, and little or no space can be spared in this volume in re-recording what has been already written and preserved of them.
"Asheville's Centenary.
"Ibid.
"Ibid.
"Ibid.
""Ibid.
"The Lyceum, April, 1891, p. 23.
"Related by Judge Geo. A. Shuford.
"From Reminiscences of Dr. J. S. T. Baird, published in 1905.
11From Mrs. Mattie S. Candler's History of "Henderson County."
"2J. H. Wheeler's " Reminiscences."
"Miss Fanny L. Patton in the "Woman's Edition of the Asheville Citisen," November 28, 1895.
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Miller, ex parte (90 N. C. Reports, p. 625), the Supreme court held that land so devised could "not be sold for partition dur- ing the continuance of the estate of the life tenant; for, until the death of the life tenant, those in remainder cannot be ascertained." The sales so made, were, therefore, void.
But years passed and some of the property became quite valuable, while another part of it, being unimproved, was non- productive, and a charge upon the productive portion. But there seemed to be no remedy till the city of Asheville con- demned a portion of the productive part for the widening of College Street. The question then arose as to how the money paid by the city for the land so appropriated to public use should be applied. On this question the Supreme court de- cided in Miller v. Asheville (112 N. C. Reports, 759), that the money so paid by way of damages should be substituted for the realty, and upon the happening of the contingency-the death of the life tenant-be divided among the parties en- titled in the same manner as the realty would have been if left intact.
Upon this hint, on the petition of the life tenant and the remaindermen, a special act was passed by the legislature (Private Laws of N. C., 1897, Ch. 152, p. 286) appointing C. H. Miller a commissioner of the General Assembly to sell the land, the proceeds to become a trust fund to be applied as the will directs.
This was done; but the Supreme court (Miller v. Alexander, 122 N. C., 718) held this was in effect an attempted judicial act and therefore unconstitutional. The legislature after- wards passed a general act, which is embodied in section 1590 of the Revisal, for the sale of estates similarly situated, and under this authority some of the land was sold and the pro- ceeds were applied to the construction of a hotel on another part. The proceeds, however, proved insufficient to com- plete the hotel, and in an action brought to sell still more of this land for the purpose of completing the hotel, the Supreme court held in Smith v. Miller (151 N. C., p. 620), that, while the purchasers of the land already sold had received valid title to the same, still as the hotel, when completed, would not be a desirable investment, the decree for the sale of the other land, in order to provide funds for its completion, was void because it did not meet the statutory requirements that the interests involved be properly safeguarded.
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A LONG LEGAL BATTLE. In July, 1897, the First National Bank of Asheville failed, and indictments were found in in Greensboro against W. E. Breese, president, W. H. Pen- land, cashier, and J. E. Dickerson, a director, for violating the United States banking laws. 2 In 1909 Breese and Dicker- son were tried on a new indictment at Asheville before Judge Purnell, Judge of the United States District court of the Eastern District of North Carolina, assigned to hold the court for this trial. The defendants were convicted, but took an appeal and a new trial was granted. In 1902 Breese alone was tried at Asheville before Judge Jackson of Virginia, and there was a mistrial. In the same year the case was sent to Charlotte and there was another mistrial. He was tried there again and convicted, and sentenced to seven years in the pen- itentiary; but the court of appeals quashed the indictment because two members of the grand jury who found the true bill had not paid their poll taxes. This apparently ended these cases, as the offences by this time had been barred by the statute of limitations. But District Attorney Holton resurrected the indictment found first at Greensboro in 1907, and Breese and Dickerson were tried at Asheville upon that before Judge Newman of Atlanta, in the summer of 1909, and convicted. They were sentenced to two years and to a fine of $2,500 each, but appealed. The court of appeals were unable to agree and, in November, 1911, certified the case to the Su- preme court of the United States. In the spring of 1912 a motion was made before that court to advance the case upon the docket. It was granted and the appeal decided adversely to the defendants in October, 1912.
THE SOLICITORSHIP. In the controversies over the Solicit- orship in this section, between Ewart and Jones, ' McCall and Webb, ' McCall and Zachery, ' and McCall and Gardner, the impression has gone out that, in one or the other of these cases, the Supreme court reversed its holding in Hoke v. Hen- derson, " to the effect that an office to which a salary was attached was property, and that the legislature could not de- prive one elected to such an office of his rights by abolishing the position. This, however, is wrong, as that case was not overruled until August, 1903, in Mile v. Ellington (134 N. C. Reports, 131).
MANY LEGAL POINTS SETTLED. The Western Carolina
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HISTORY OF WESTERN NORTH CAROLINA
Bank was chartered in 1887 (Ch. 48) and began business in January, 1889. It failed, however, October 12, 1897, and its officers executed a deed of assignment to Lewis Maddux, its president, and L. P. McCloud, its cashier; but the Bat- tery Park Bank and other creditors commenced an action against the bank for the purpose of setting this deed of assign- ment aside; in consequence of which Judge H. G. Ewart, judge of the Circuit Criminal court, undertook to appoint receivers of the property. A few days later Judge W. L. Norwood, holding Superior court in Clay county, appointed the same parties receivers, there being doubt as to Judge Ewart's jurisdiction. 8 George H. Smathers alone, however, acted as receiver, the others having declined or resigned. There was a class of creditors which filed a general creditors' bill between the date of the appointment of receivers by Judge Ewart and the date of the appointment by Judge Nor- wood, who thus sought to secure priority over the assets not affected by the lien of creditors who had obtained judgments before justices of the peace, as many had done; but the Su- preme court refused priority to those thus seeking to secure it. 7
There were many other questions settled in the ensuing litigation, for Receiver Smathers was removed and W. W. Jones, Esq., appointed in his place in May, 1902; and he immediately began to collect the assets of the bank, and to compel Madison county to pay certain of its bonds which he held among the assets of the defunct bank. The Supreme court decided that each stockholder was liable to the extent of double the amount of his stock. " It at first denied the mandamus asked for to compel the commissioners of Madi- son county to levy a tax to pay its bonds 10 but on a rehearing granted the mandamus. (137 N. C., 579.)
The question as to whether a married woman could escape her liability as a stockholder was also settled adversely to such claim. 11 In pursuit of the stockholders it became nec- essary for the receiver to get the legislature to pass an act authorizing him to sue outside the State. 12
LINVILLE LITIGATION. S. T. Kelsey and C. C. Hutchinson had started Highlands; but Mr. Hutchinson, who was to have provided the money, found himself unable to do so, and Mr. Henry Stewart, editor of the agricultural depart-
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ment of a New York newspaper, bought, through Kelsey, all the land Hutchinson was to have paid for. Then Stewart broke with Kelsey and the latter turned his attention to the development of the Linville country. Mr. S. P. Ravenal, Sr., advanced $500 for preliminary investigations, which resulted in the formation, about 1890, of the Linville Im- provement Company with Messrs. Ravenal and Kelsey and the late Mr. Donald MacRae of Wilmington, N. C., as the principal stockholders. Neither Ravenal nor MacRae held a majority of the stock, thus giving Kelsey the balance of power.
There were three distinct lines of policy advocated by each of these gentlemen. Mr. MacRae wanted to bond the prop- erty for the construction of a railroad from Cranberry; Mr. Kelsey wished to establish an industrial center at Linville City; and Mr. Ravenal opposed both, but wanted to estab- lish a health and pleasure resort at Linville City, sell lots and hold the 15,000 acres of timber land the company had acquired for future development. After a while Mr. Thomas F. Par- ker succeeded Mr. Ravenal and Mr. Hugh MacRae succeeded his father, Mr. Donald MacRae. These two could not agree and Mr. Kelsey, siding with the McRaes, a receiver was applied for and appointed between September 1, 1893, and September 1, 1894.
These disagreements among the stockholders of the Lin- ville Improvement Company in relation to the general policy to be pursued by the officers in control, and especially in respect to the method of liquidating the outstanding indebt- edness and encumbering the property of the company, were involved in an action brought against that company by T. B. Lenoir, executor of W. W. Lenoir, and decided by the Su- preme court. (See 117 N. C. Reports, p. 471.) Thomas F. Parker had been president from September 1, 1893, to September 1, 1894, and Harlan P. Kelsey secretary for the same time. A special master had rejected the claims of these two officers for pay for services during this time, and the court held that they should have been allowed to prove that they had a contract for employment with the company for the entire year and not only up to the time of the appoint- ment of a receiver.
After a while Mr. MacRae offered to sell his interest or buy that of Mr. Ravenal at a certain price. Mr. Ravenal sold.
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A railroad was finally built to Pinola and Montezuma, two miles from Linville City. But the golden opportunity had passed. For, while the company was constructing the Yonah- lossie turnpike from Linville City around the base of the Grandfather mountain to Blowing Rock, erecting a fine hotel and constructing a large dam for a lake at Linville City, the press was ringing with praises of the beauty of the scenery, the healthfulness of the surroundings and the general attract- iveness of the place. Visitors came in numbers from various parts of the country and wished to invest in lots and build
cottages. But, as the property was in litigation, titles could not be made to the lots, and the boom subsided. Blowing Rock, however, which before had been a mere hamlet, sud- denly developed rapidly and substantially, and is today one of the finest and most attractive health and pleasure resorts in the mountains.
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