35 N.J. Eq. 94 | New York Court of Chancery | 1882
The argument in support of the general demurrer was on the ground that the bill shows a cause of action barred by the statute of limitations. The special demurrer was on the ground that the two complainants were improperly joined. I am of opinion that both demurrers must be overruled.
The rule is settled that the creditor of a partnership may, at his option, proceed at law against the surviving partner or go in the first instance into equity against the representatives of
In the present ease, an action at law was begun by Reuben Comins in the year 1872, in the supreme court of New York, against the partners, Culver and Hetfield. It was contested, and in November, 1875, before judgment, Culver died. By his death the equitable right of suit against'his representatives arose. This equitable claim is now sought to be enforced by bill filed within six years from the time when the right accrued. At the time of Culver’s death, in November, 1875, more than six years had elapsed since the legal right of action had accrued, which was in 1868, when the partnership debt was contracted. Did the delay made by the resistance of the partners in the legal action till the death of Culver, terminate all right of recourse by Comins to Culver’s individual estate ? I can find no grounds of principle or authority on which this question can be answered in the affirmative. If his death, after the six years, did not absolve his individual estate from all liability to Comins, and the equitable right» thereupon arose, how long did such equitable right continue? It was contended by the counsel of the complainants that the real questiou in this suit in equity, is not whether the debt is barred by the statute of limitations, but whether there has been such laches on the part of the complainant, since the death of Culver, as to require this court to dismiss the present bill. I think this contention a good one.
After the legal action in New York abated against Culver by his death, it was continued against Hetfield, the surviving partner, and was defended by counsel employed by the heirs and administratrix of Culver. The legal remedy was pursued against Hetfield, and not exhausted till March 19th, 1881, when his property was taken under and in part satisfaction of the judgment. The present suit was commenced shortly afterwards. No laches can therefore be alleged, and no complaint can be made of delay by parties defendant, who have caused the delay by vexatious and protracted litigation.
In Graves v. Coutant, 4 Stew. Eq. 763, the court of appeals held that a vendor’s lien more than twenty years old, had been
There is another ground on which the bill may be sustained as against the statute of limitations. Complainants’ claim against Hetfield is not outlawed, and Hetfield has a remedy over against the estate of his deceased partner for contribution, which is not outlawed. The complainants’ bill will lie to enforce that remedy. In Peaslee v. Breed, 10 N. H. 489, it was held that where the liability of one contractor was continued by partial payments, the debtor, who kept the demand alive and paid it after six years, might recover at law a contribution from the other within six years after the final payment. In Hammond v. Hammond, 20 Ga. 556, the court held that an accounting between partners is not barred so long as debts are due to or from the partnership. In Robinson v. Alexander, 2 Cl. & Fin. 717, an accounting was ordered after twenty years, between the representatives of joint owners of a vessel, on the ground that such case was within the spirit of that exception to the statute which relates to accounts between merchant and merchant. In Partridge v. Wells, 3 Stew. Eq. 176, affirmed 4 Stew. Eq. 362, a bill was filed by a surviving partner against the widow of a deceased partner to reach lands which the deceased partner had bought in his wife’s name, more than six years before, with partnership funds. This bill was sustained on the ground that there was no adequate remedy at law, and the statute of limitations did not apply to a claim of exclusively equitable cognizance. If in that case a creditor of the partnership had filed a bill for the same relief, it is not easy to see on what principle he could be barred, so long as his claim was valid against the survivor. The survivor’s claim against the estate of his deceased partner is an asset, which the judgment creditor of the survivor can seek by bill in equity, as he can any other chose in action of his judgment debtor. Complainants’ bill alleges that all the partnership assets were equally divided between the partners, leaving complainants’ debt unprovided for. Hetfield has a claim against
The objection that the complainant Pottle is improperly joined with Comins, is not a good one. He became a surety for the defendants Culver and HetfieJ.d in the action at law, and was obliged to pay a portion of their debt. He became subrogated to that extent to Comins’s claim. He is an equitable owner of a part of the debt sought to be recovered, and should be joined with the other owner in this equitable suit. 1 Dan. Ch. Pr. 192. At the hearing an application was made by complainants to amend their bill, which was granted, without costs. I will therefore disallow costs against defendants on overruling their demurrers.