McLain v. Carson's Ex'r

By the Court, Lacy, J. The doctrine of partnership, in these cases, is well settled in England. At law, the contract was always treated as a joint agreement; and, upon the death of one partner, a joint creditor could not proceed against his separate estate. The reason is, that, by the death of the joint partner, the joint contract, as to him, becomes extinguished. The creditor may have his action against the survivor or joint contractor. 1 Ch. Pl. 57. Collier on Part. 337. In equity, there is some conflict between the authorities. The creditor, in equity, will be permitted to receive satisfaction of his debt out of the estate of the deceased partner, under certain restrictions, through the medium of subsisting equities between the parties themselves; and Lord Eldon has pithily remarked, “ that separate creditors must take the separate estate, and the joint creditors the surplus.” Greer vs. Chiswell, 9 Vesey, 118. Jacomb vs. Hartwood, 2 Vesey, 265. And Lord Brougham said, in Sumner vs. Powell, 1 Mer. 73, “ that a partnership debt has been treated, in equity, as the several debt of each, though, in law, it is only the joint debt of all.” The general rule upon the subject is, that if, upon the decease of a partner, the creditor’s contract is to be treated as several, as well as joint, in respect to the firm, then he will of course be entitled to receive satisfaction in equity, immediately out of the estate of the deceased partner, and to take his portion pari passu with separate creditors. Under our laws, no such thing as a joint contract, in the sense in which it is used in England, can be allowed. Our statute regulating proceedings upon such subjects, enacts, “ that all joint debts or obligations shall survive ¡against the heirs, executors, and administrators of such joint debtor or obligor, as may die before the discharge of such joint debt or obligation •” Rev. St,, sec. 1 to 24, p. 475. This act makes a partnership debt a several, as well asa joint contract; and the partnership creditor is, consequently, invested with a legal right to proceed immediately against the estate of the deceased partner, and to be paid at the same time with separate creditors. The debt against the firm being separate as well as joint, the death of the one partner cannot extinguish the separate demand against his estate. That contingency leaves his right in full operation, and the deceased partner’s estate bpund separately for the debt. Judgment reversed.