Hanway v. Robertshaw

49 Miss. 758 | Miss. | 1874

PeytoN, O. J.,

delivered the opinion of the court:

It appears from the record in this case that Thos. Greary and Bartholomew Hanway, partners in trade under the firm name of B. Hanway & Co., were indebted to the appellant in the sum of $2,594.08. That said B. Hanway departed this life on the 1st day of October, 1870 ; and that Thomas Greary, the surviving partner, and Mary Hanway, widow of the deceased partner, B. Hanwa}*-, each assumed to pay one-half of said debt,, and executed their promissory notes to the appellant in the sum. of $1,297.04 each; and to secure the payment of these notes, the said surviving partner and widow of the deceased partner executed a mortgage on certain real estate belonging to the late firm.

The appellant filed a bill in the chancery court of Washington county against the said Thomas Greary, Mary Eobertshaw (formerly Mary Hanway) and James Bobertshaw, her husband, and the heirs of said Bartholomew Hanway, deceased, alleging these facts, and praying a foreclosure-of the equity of redemption and sale of the property mortgaged to pay said debt.

The defendants, Mary Bobertshaw and James Bobertshaw, appeared and filed a demurrer to the bill, which was sustained by the court .and the bill dismissed as to these defendants. And this action of the court below is assigned in this court for error.

The widow of the deceased was not a member of the firm of Bartholomew Hanway & Co., and as the record does not show any consideration for her assumption of one-half of the debt of said firm, it is difficult to perceive upon what principle she can be liable to the appellant for any part of his claim against the said firm. The personal assets in the hands of the surviving partner are liable at law for the payment of the debts of the partnership, and the real estate of the partnership is held by the partners as tenants in common at law, and upon the death of one of them, his estate in the lands descends to his heirs. And whenever it becomes necessary to resort to the real estate thus held, for the payment of debts, a bill in chancery for that purpose should be brought against the heirs and the surviving partners, as tenants in common.

Upon a dissolution of the firm, by the death of one of its members, the credits and personal effects vest, by operation of law, in the survivors, and under judgment against them, the effects of the firm may be sold. The real estate, however, preserves its distinct qualities, and descends as above stated to the heir, who holds in common with the survivors, in trust, for the purposes of the partnership; first, for the creditors, and second, for the members of the firm, and their representatives, according to their several interests. The law is incompetent to administer this trust in favor of creditors. Complete redress can only be meted out in chancery, where all the interests in the land can be brought before the court, and by one decree, the entire estate converted into money for the payment of the debts of the partnership.

The sustaining of the demurrer prunes the bill of improper parties, and leaves it with the necessary parties, through whom equity and justice may be meted out to the complainant.

We therefore think the court below did not err in sustaining the demurrer, and dismissing the bill as to the parties, demurring.

The decree must be affirmed.