3 Blackf. 39 | Ind. | 1832
This is a suit in chancery transferred from the Vigo Circuit Court, the Circuit ■ Judge being interested. The bill states, that Samuel Bidleman and William Battels were jointly indebted to the complainant, in 1826, for the price of two-thirds of an Orleans’ boat and cargo of corn; that Bidleman died in Kew-Orleans, within six months or a year after the debt was contracted; that Battels is absent from the country and insolvent; and that a balance of the debt, being 182 dollars, and 25 cents, remains unpaid. The bill further states, that Samuel Bidleman, at the time of his death, was possessed of considerable goods and chattels in Vigo county; that his widow, then Sally Bidleman, took possession of them and sold them; that, besides other property.of the deceased received and disposed of by the widow, there was a certificate for a half-quarter section of land in Vigo county, which had cost him 200 dollars; and that this land certificate, with some other property, was sold by the widow to Benight, with whom she has since intermarried. ■
, The first inquiry in this case is, whether there is any thing due to the complainant from Bidleman’s estate ? The following is the proof: In the spring of 1826, Bidleman and Battels purchased of Brown two-thirds of a boat, which they loaded with corn of their own,,except about 500 bushels received from Brown and to be sold for him at JYew-Orleans. Brown furnished a hired man and part of the provisions for the trip. The boat soon afterwards, arrived safe at Natchez; where Bidleman and Battels offered the corn for sale, but without success. They left Natchez', two weeks after their arrival, for New-Orleans; and this is the last we hear of the boat or cargo. Neither Bidleman nor Battels ever returned. The former is dead, and the latter insolvent. These facts show, that Bidleman and Battels were jointly indebted to Brown for two-thirds of the boat. Whether or not they were also indebted to him for the corn he furnished, we shall not stop to inquire. On Bidleman’s death, Battels might have heen sued for the joint debt; and on Battels’ insolvency, the estate of Bidleman became chargeable for it in equity
The next question' is, whether the defendants, Benight and Sally his wife, executrix of Bidleman, are liable to a decree- for the debt, or any part of it, for having wasted the assets of the intestate? It is proved, that when Bidleman set. out with the boat, he left his wife and five small children in a destitute
The assignment of this land certificate must be considered, under the circumstances, as having been made to Samuel Bidleman, the father. It is decided that if father and son are both called A. B., by naming A. B. the father prima facie shall be intended. Lepiot v. Browne, 1 Salk. 7. Besides, it is expressly proved that, in the case before us, the father was intended. But notwithstanding the assignment was to the father, if the purchase had been really a joint one by the father and son, a trust would .have resulted to the latter; according to the money paid by him. Elliott v. Armstrong, May term, 1829.—Botsford v. Burr, 2 Johns. Ch. Rep. 405. It appears to us, however, from the testimony, that this purchase was made on account of the father alone, and that all the parties intended that both the beneficial and legal title should be vested in him. What
The account of the administration of Benight himself, as rendered in the answer to the bill, is not contradicted. It shows that there are no assets in his hands.
The bill is dismissed with costs.
By the common law, upon the death of one joint-contractor, the action survives against the other or the rest, and the representative of the deceased is not liable at law. The English commissioners lately appointed, &c. had some doubt whether it would not he desirable to provide that, in the caso of such death, the creditor should have the option of bringing the action either against the survivor or survivors-only, or against the survivor or survivors jointly with the personal representatives of the deceased. They concluded, however, not to interfere with the existing rule. 6 Lond. L. M. 261.
In Indiana, the representatives of a deceased joint obligor are liable to an action at law, by the statute, in the same manner as if the obligation were joint and several. Rev. Code, 1831, p. 291.