14 Barb. 644 | N.Y. Sup. Ct. | 1853
Where a note is made by two persons, which in terms is joint only, upon the death of one of the makers, the surviving maker only is liable upon it; unless it appears by direct proof, or the facts of the case warrant the inference, that the parties intended it should be joint and several. (7 Bac. Abr. Bouvier’s ed. 249. Story’s Eq. Jur. § 162 to 164. Bradley v. Burwell, 3 Denio, 61. Hunt v. Rousmanier, 8 Wheat. 174. 1 Peters, 1, 16. Carpenter v. Provoost, 2 Sand. 537.) If such an intention is expressly proved, or may be inferred from the transaction, the note will be treated as if it was joint and several, and in that case the personal representatives of the deceased maker are liable for its payment. {Same cases.) In all cases of a joint note given upon a joint loan of money, or a joint liability of any kind, it will be presumed it was intended the note should be several as well as
It is supposed on the part of the plaintiff, that the doctrine of the common law referred to, arose from the inability under that system to enforce a responsibility upon a joint promise against both the survivor and the estate of the deceased joint debtor; the same judgment against the survivor and the representatives not being proper; and that the same rule should not prevail under the code, which authorizes such a judgment as any particular case requires. In this I cannot concur. The principle results from the form of the contract. (7 Bac. Abr. Bouvier’s cd. 250.) The parties have so contracted. It would add to the liability, which the parties have by their- contract assumed, to make the estate of the deceased liable. The only mode in which the liabilty has ever been extended, in equity, has been by reforming the contract upon the idea of a mistake, and making it several as well as joint. (Authorities above cited.)
In Lawrence v. The Trustees of the Leake and Watts Orphan House, (11 Paige, 80,) it was decided that the estate of a deceased copartner or joint debtor could not be reached by a suit in chancery, without averring and proving that the surviving debtors were insolvent; that there was no concurrent remedy in equity and at law for the recovery of the debt; and that the statute limiting the time for the commencement of suits which were exclusively of equitable cognizance, did not begin to run until the survivors become insolvent. This decision was affirmed in the late court of errors. (2 Denio, 577.) If this doctrine is applicable under the code, it would seem to be fatal to a joint action against a surviving and the representatives of a deceased joint contractor, except in cases where the survivor is
The present action is analogous to a suit in equity in the late court of chancery against the representatives of a deceased joint debtor, upon the insolvency of the survivor. The surviving debtor is a proper party. (Story’s Eq. Pl. § 167. Wilkinson v. Henderson, 1 Mylne & Keen, 582.) Mo objection was made as to the suEciency of the proof of insolvency. As the note in question is joint only, it was necessary in order to entitle the plaintiff to recover, that it should appear a several as well as a joint liability was intended. It is shown by the evidence that Jonas M. Wheeler held a mortgage for $>750 upon real estate owned by the defendant Lamphire, worth over $>1500, which mortgage was the only incumbrance on the premises; that Lamphire entered into an agreement with Charles S. Ben-ham, to convey to him the premises, free of incumbrance, and applied to Wheeler to take other security and release the premises from the mortgage, giving as a reason that he wanted to sell the property and give a clear title. Lamphire proposed to give a note signed by himself and Reynold Peck, the intestate of the other defendants, for the amount due. Some time afterwards Wheeler met Peck and informed him of the application and proposal of Lamphire, and told him that he, Wheeler, would not give up the mortgage and take a note unless it was to accommodate him, Peck. Peck answered, “ I don’t know, I am on too much for him now; at any rate I shall not go on for him unless I can get the avails of the property.” Lamphire subsequently brought and delivered the note in suit to Wheeler, who gave him therefor a discharge of the mortgage. Wheeler afterwards, and before the maturity of the note, transferred it to the plaintiff. The evidence further shows that at the time Peck signed the note, it was agreed between him and Lamphire that the latter should pay, out of the proceeds of the sale to Ben
Selden, Johnson and T. R. Strong, Justices.]
The evidence is somewhat variant from the allegations in the complaint, in regard to the agreement between Peck and Lamphire upon which the note was signed by Peck; but no objection on that account appears to have been made at the trial, and it is apparent that the defendants were not misled by the variance, to their prejudice. (Code, § 169.) The allegations were not unproved “ in their entire scope and meaning.” (§ 171.)
If the views expressed are correct, the judgment appealed from as against the appellants is not erroneous.
Judgment affirmed.