117 N.C. 449 | N.C. | 1895
This case is not very clearly developed by the complaint which seems to have been used by plaintiff as an affidavit i'n the application for an injunction. And we are not certain that we fully understand all the facts. But, as it is an application for ancillary relief only, in which there can be no final judgment, if we should mistake some of the facts the parties will not be bound by them on the trial, and they may there be corrected. We are of opinion, however, that enough does appear to entitle the plaintiff to the injunctive relief prayed for. It does appear, as we think, that the plaintiff is the surety of J. E. and W. A. Moore, partners, i'or over $9,000, which has been reduced to judg
It further appears that R. A. Moore has applied for dower, and that the same has been assigned to her as the widow of J. F. Moore; and in the allotment of the dower, the whole of the lands owned by her husband have been estimated and valued at their fee simple value, without considering the incumbrance on t]je same, but that she has been allowed to have the real estate owned and held by the insolvent partnership of J. F. & ~W. A. Moore, estimated, valued and considered in making her allotment of dower, in this way causing the dower to cover almost the entire real estate owned by the deceased husband ; and that the defendant, W. A. Moore, as the administrator of J. F. Moore, has procured an order from the superior court (the clerk) to sell the lands of the said J. E. Moore, subject to
Upon these facts it seems to ns the plaintiff is entitled to equitable relief. This partnership, being insolvent, its creditors have a right to have its assets applied to the payment of the partnership debts and in exoneration of plaintiff’s liability. Pomeroy Eq. Jur., Secs. 1417, 1419; Patton v. Carr, at this Term. The partnership being insolvent, the real estate owned by the partnership will lie considered personalty for the payment of debts. Shanks v. Klein, 104 U. S., 18. And this being so; the widow R. A. Moore cannot have dower assigned to her out of the same. Liudley ou Partnership, 341. Nor could she have it taken into consideration in estimating her dower so as to increase the same. It is in legal contemplation personalty. All the property of the said J. E. Moore being liable for the partnership debts, subject to the rightful dower of his widow, she cannot have its value grently diminished by having her dower erroneously increased. While this defendant has an equity to have her dower relieved from incumbrances out of the individual estate of her husband, she has no right to have this done out of the firm assets — as these are first to be applied to the payment of the firm debts. W. A. Moore, as surviving partner, having conveyed the partnership estate to W. E. Carter, in trust to pay the debt for which plaintiff is liable, and other partnership debts, it seems that this created an equitable estate in Carter, though not a legal estate, which he should proceed to enforce, and sell the estate so conveyed to him and apply the proceeds. Shanks v. Klein, supra. But this trust should be enforced through an order of court that there may be no dispute as to the title, and that the land so conveyed to him may bring its full value.
Error.