Sells v. Administrators of Hubbell

The Chancellor. [ * 397 ] The application to vacate the order of the 13th of May last, is made on behalf of John Bedient. But provided the executions, to be issued at law, in the name of Sells, are confined (as the order of the Supreme Court, of the last term, made before this present application was made, confines them) to real property, whereof Bedient was seised between the date of the judgments and the date of his discharge under the insolvent act, he has no concern with this question. If he owned any such property, it must have passed to his assignees, *or been by him sold in the mean time, subject to the judgments. It is, therefore, the assignees, or the purchasers, who have an interest in discharging that order, and they are not parties to this application. It is true, that the notice of the motion is stated to be by the solicitor for “ John Bedient and his assigneesbut the assignees are not so much as named, and we have no affidavit denying that they were not apprized of the intended application for the order in May, or that they have any ground to object to the claim for contribution set up by the representatives of Hubbell. I cannot, therefore, consider that the motion ought to prevail, in respect to the assignees, for they are not properly parties to the motion; and if they were, they have shown nothing entitling them to prevail. [397] [ * 398 ] [396] If this was a case in which Bedient had an interest in the question, I should think it would not be very extravagant to consider the service of the notice of the motion, in May, on E. W. King, as sufficient notice to him, because it appears that E. W. King was his solicitor to an answer put in by him to a bill, by these very representatives of Hubbell, on the subject matter of these judgments. With respect to any equitable objection to the claim for contribution, I think it is clear that Bedient has none, nor have those who now represent him. The debt of Sells was the debt of the co-partnership of Bedient Hubbell. It was the common equal debt of both the partners, and the consideration for which it was created is presumed to have enured equally to the benefit of both, and the contribution ought to be equal. The estate of each partner ought to be charged with the debt in equal portions, provided their interests in the co-partnership were equal, and their accounts as between each other were equal. This is the intendment, in the first instance ; and it would be a thing almost of course for equity [397] to allow the representatives of a deceased partner who had to pay the whole debt to be substituted in the place of the creditor in order to *recover, from the surviving partner, or his estate, a moiety of what they had paid. Nothing could stay this proceeding but the allegation of the surviving partner that he was the creditor partner, and that the estate of the deceased partner owed him a balance, as much or more than it had been obliged to pay. This would render it requisite to take and state an account between the partners, before this Court could interfere, in any way, to enforce the claim for contribution. But, in the present case, the evidence before me is against any such well-founded pretension on the part of Bedient. In his affidavit on this motion, taken on the 16th of January last, he does, indeed, say, “ that he was not indebted to Walter Hubbell at the time of his decease, nor to the firm, and that, upon a fair statement of accounts, he believes there is a considerable balance due from the estate of Walter Hubbell to him, or his assignees, including the amount of the said judgments.” If this was all he had ever said, I should think an account ought to be previously taken; but his language, on other occasions, equally solemn, has been different. In his affidavit, made on the 27th December last, in the Supreme Court, in order to set aside the proceedings at law, under the order of the 13th of May, he stated, “ that, at the death of Hubbell, the copartnership property was insufficient to pay the debts of the firm, and that, on the final settlement of the concern, he was not indebted to the estate of the deceased partner. He here admitted that there had been a final settlement of the copartnership, and he made no pretence that the deceased partner was a debtor to the firm. And in his answer in chancery, to which I have already alluded, he admits, that in his proceedings under the insolvent act, “ he made no statement of the accounts between himself and the estate of Walter Hubbell, deceased, because all such accounts had been previously closed and balanced.” [ * 399 ] *I need not, however, pursue this point. I have only looked into the facts, so far as to satisfy myself, that no injustice will probably follow from denying the motion, on the strict formal ground, that Bedient is not entitled to make the motion, and that his assignees, who represent his interests, are not parties to the motion, and have not shown any want of notice. But the order for the assignment must be so taken as to operate only on a moiety of the judgments; and if it was not so done, it was taken to an extent beyond what the party was entitled to, even upon his own showing. It is not [399] alleged, or proved, that on a settlement of accounts, Bedient was indebted to Hubbell; and all that the representatives of Hubbell could ask for, in the first instance, was contribution for a moiety of what they had paid upon the judgments. The motion, on the part of Bedient, to set aside the order of the 13th of May last, is, consequently, denied, with costs; and it is declared that the representatives of Hubbell are entitled to recover from the estate of Bedient, under the assignment of the judgments, a moiety only of the debt which the representatives of Hubbell have been obliged to pay to Sells, under the decree of this Court. That is what the counsel for these representatives admits to be the extent of their claim, and that is the extent to which the order of the 13th of May is to be carried. Order accordingly.