Van Wagner & Yeoman v. Chapman's Adm'r

| Ala. | Jun 15, 1856

BICE, 0. J.

In Smith v. Mallory, 24 Ala. R. 628, and in Bridge v. McCullough’s Adm’r, 27 Ala. R. 661, this court deliberately approved the rule, that the joint creditors shall be first paid out of the joint estate, and the separate creditors shall be first paid out of the separate estate of each partner ; and if there be a surplus of the joint estate, besides what will pay the joint creditors, the same shall be applied to pay the separate creditors ; and if there be, on the other hand, a surplus of the separate estate, beyond what will satisfy the separate creditors, it shall go to supply any deficiency that may remain as to the joint creditors. That general rule was held to embrace and govern both of the cases above cited, although it was admitted that there were exceptions to the rule.

In the present case, the proof shows that there was a joint fund — that the surviving partner “ had sued upon several claims due the said L. W. Chapman & Co., and collected the money upon them by due process of law.” That proof being made, it-is very clear, that the insolvency of the- surviving partner, the suits against him, and the return of no property. on the executions issued against him, do not, by virtue of our Code or any other law, exempt the case of the joint creditors (the appellants) from the operation of the general rule. Their case, as presented in this record, does not fall within any class of exceptions to that rule. — Collyer on Partn. §§ 923, 926 ; McCulloh v. Dashiel’s Adm’r, 1 Harris & Gill’s Rep. 96.

There is no error in the decree of the court below, and it is affirmed.