15 Ind. 124 (Ind. 1860), , Weyer v. Thornburgh

• Citation: 15 Ind. 124
• Opinion Judge: Worden, J.
• Party Name: Weyer and Another v. Thornburgh, Administrator of Reagan
• Attorney: O. J. Glessner, H. C. Newcomb and John Tarkington, for appellants. W. R. Harrison, for appellee.
• Judge Panel: Per Curiam.
• Case Date: November 30, 1860
• Court: Supreme Court of Indiana

Page 124

15 Ind. 124 (Ind. 1860)

Weyer and Another

v.

Thornburgh, Administrator of Reagan

Supreme Court of Indiana

November 30, 1860

APPEAL from the Morgan Common Pleas.

Affirmed, with costs.

O. J. Glessner, H. C. Newcomb and John Tarkington, for appellants.

W. R. Harrison, for appellee.

OPINION

Worden, J.

In 1855, Reagan & Olleman, as partners, executed to the appellants a promissory note. Subsequently

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Reagan died, leaving the note unpaid. The appellants brought suit upon the note against Olleman as the survivor, and recovered judgment, upon which execution was issued and returned nulla bona. The plaintiffs then filed the note as a claim against the estate of Reagan deceased, and it was duly allowed by the Court below, but it was ordered not to be paid until the individual creditors of Reagan were satisfied, his estate not being solvent, but probably able to pay 50 per cent. on the claims against it. The plaintiffs appeal, and complain of the order of the Court postponing their claim until the individual creditors of Reagan are paid, claiming that they have a right to share the estate pari passu with the individual creditors.

In the case of a joint contract, as in this case, if one of the parties die, his executor or administrator, at common law, is discharged from liability, and the survivor alone can be sued. 1 Chitty's Plead. p. 50. In equity, however, the rule is different. Says Mr. Justice Story, "The doctrine formerly held upon this subject seems to have been, that the joint-creditors had no claim whatsoever, in equity, against the estate of a deceased partner, except when the surviving partners were at the time, or subsequently became, insolvent or bankrupt. But this doctrine has been since overturned; and it is now held, that in equity, all partnership debts are to be deemed joint and several; and consequently the joint-creditors have in all cases a right to proceed at law against the survivors, and an election, also, to proceed in equity against the estate of the deceased partner, whether the survivors be insolvent, or bankrupt, or not." Story on Part. § 362.

We advert to these elementary principles, as showing that the appellants' claim is one that could be enforced in equity only, against the estate of the deceased, and, therefore, that it must be subject to such equitable rules as obtain in reference to the payment of partnership, and individual debts.

The general rule in this respect, is thus stated by a standard author: "The joint-creditors have the primary claim upon the joint fund, in the distribution of the assets of bankrupt or insolvent partners, and the partnership debts are...