Rice v. Richards, 45 N.C. 277, 1 Busb. Eq. 277 (1853)

Aug. 1853 · Supreme Court of North Carolina

45 N.C. 277, 1 Busb. Eq. 277

E. B. RICE against WILLIAM RICHARDS, AND J. COFFIN, EX’RS OF JOHN RICHARDS.

A bond made to a partnership, upon the death of one partner survives to his copartner; therefore any payments thereon made by the obligor to the representative of the deceased partner are made in his own wrong.

The plaintiff, in 1848, executed his single bond to John and ’William Richards, partners in trade, for the sum of $225. Shortly thereafter John died, leaving a will and the defendant Coffin bis executor. The plaintiff alleges that the defendant Coffin made application to him for the payment of said land (which was in the hands of William,) stating that one half of the amount was going to him as executor, that William was insolvent, and if he got hold of it, he would not account for the share of his testator ; and he cordingly paid the bond to Coffin — of which he states William had notice. William Richards as surviving partner subsequently brought suit on the bond and obtained judgment-thereon against the plaintiff ; and the prayer of the bill is for an injunction against its collection.

The defendant William answers that as to the payment made by the plaintiff to Coffin, as executor, he believes it was by a fraudulent combination between them to fake advantage of him, as the said firm of himself and brother was largely indebted to him, which fact was well known to the plaintiff and Coffin. And he insists on his right as surviving partner to the bond, and that the plaintiffs’ payment to the executor of John was illegal and gratuitous.

His honor Judge Caldwell at Rowan, on the last Spring Circuit, dissolved the injunction theretofore granted in the cause, and from his order therein the plaintiff appealed to the Supreme Court.

A. H. Caldwell, for the plaintiff.

Craige, for the defendant Richards.

PeaesoN, J.

The entire legal ownership of the note survived to the defendant William Richards, and the personal representative of the deceased obligee had no right to receive any part of it. The plaintiff, therefore, made the payment in his own wrong.

Whether the personal representative of the deceased obligee has a right in Equity to call upon the survivor for an account, it is not necessary now to decide, because the defendant fully meets and denies all supposed grounds of equity. The order dissolving the injunction is affirmed.

Per Curiam. Interlocutory order affirmed.