Root v. Vawter

McBRIDE, C. J. The condition here is peculiar. There is no doubt but that there was some sort of a partnership between W. I. Weaver and John M. Eoot [198] during Yawter’s lifetime, and there is little doubt but that the $8,000 Note for which McFarland obtained judgment was given on behalf of the partnership. What the arrangements were between the parties subsequent to the giving of this note rests very largely upon the testimony of Mrs. Boot (the plaintiff) and her husband. It is a somewhat remarkable fact that no attempt was made during the lifetime of Yawter to enforce his liability. And if Boot and his wife were insolvent or if Boot was insolvent it appears somewhat remarkable that McFarland made no attempt to collect his claim against Yawter, who appears to have been a comparatively wealthy man, during his lifetime and made no claim against his estate after his death. It is true that the plaintiff could not have collected or required contribution from Yawter or his estate without paying the judgment or some part of it. There was no attempt by anybody to have administration of the partnership estate; nor was there any such administration; nor is there any showing as to what has become of the partnership estate, if any existed, and nothing to indicate that it may not be sufficient in itself to discharge the remainder of the partnership debt, if indeed there was any partnership liability. Section 488, Or. L., provides, among other things, that the plaintiff before he can recover from a legatee shall show that the assets of the partnership are not sufficient to satisfy the demand. As held by us in Rainey v. Rudd, 82 Or. 461 (160 Pac. 1168), in an action against a legatee the plaintiff must show that no assets were delivered by the executor or administrator to the next of kin (which we think sufficiently appears here), or that there are not sufficient assets outside of those turned over to [199] the legatee to satisfy the plaintiff’s demand. There is absolutely no such proof here. For aught that appears in the testimony the plaintiff’s husband may still be in possession and control of at least forty acres of the property purchased from Morse and that property might be entirely adequate to discharge this debt. There is no evidence as to what disposition was made of this partnership property except that John M. Root says that he deeded forty acres of it to W. I. Yawter. No evidence of the record of such a deed is presented and it is possible that the property still stands on the records in the name of John M. Root. In the case of the death of a partner the common-law rule was that his estate stood absolutely discharged from liability for partnership debts except in equity, and even in equity the collection of a debt against his estate was subject to many conditions; and while this rule has been relaxed to the extent that a creditor may in certain instances proceed in equity to collect directly from the estate, it has never been extended in this state to the extent of permitting a creditor to sue a legatee or devisee without showing the insolvency of the partnership. That not appearing, the decree of the lower court must necessarily be sustained so far as it relates to the present suit and this cause dismissed, but without prejudice to the bringing of another suit when the plaintiff shall have' paid the debt, or a portion of it, and shall be able to show that the partnership estate is insolvent or that its assets have disappeared. We have not discussed the question of laches and do not pass upon it here because we think it unnecessary. Laches could not be predicated, we think, solely upon the pecuniary inability of the [200] plaintiff to have paid his debt or a portion of it sooner, as such payment would be a necessary condition to her obtaining any redress in equity. Were this a suit brought by a general creditor whose claim had matured during the administration of the estate we would have no hesitation in saying that it was barred, not only by laches, but by the terms of the statute itself; but the claim here presented stands upon a different footing and it should be only in a very clear case that the court should assume laches to exist as a matter of law. We are not disposed to regard the notice served upon the Yawters and their failure to act upon it as the presentation and rejection of a claim, the failure to prosecute which by appeal to the county court would become a bar in this action. It is entitled in the Circuit Court and in the case of McFarland v. Root and Wife. There is no demand that the estate pay John M. or Annie M. Root anything, nor does it refer to any general partnership between John M. Root and W. I. Yawter. It rather seems to be in the nature of a warning to the executors that if Yawter’s alleged share of the purchase price is not paid by them and the Roots are thereby put to any unnecessary expense or damage the estate will be held liable. It was evidently so considered by the executors who did not formally reject it. The suit is dismissed without prejudice to such further remedy as future exigencies may suggest to plaintiff. Affirmed. Burnett, Harris and Rand, JJ., concur.