Little v. Hobbs, 53 N.C. 179, 8 Jones 179 (1860)

Dec. 1860 · Supreme Court of North Carolina

53 N.C. 179, 8 Jones 179

HUGH LITTLE v. G. B. HOBBS, Administrator.

Though a covenant be With two or more, jointly, yet if the interest and cause of action of the covenantees be several, the covenant shall be taken to be several, and each of the covenantees may bring an action for his particular damage, notwithstanding the words of the convenant are joint.

This was an action of covenant, tried before Dicfi, J., at the Fall Term, 1860, of Lincoln Superior Court.

The instrument declared on, was executed by most of the children of William Little, who had then lately died, possessed of a large estate, and certain of his children had exhibited a script, which purported to be a will, but which was deified by the parties to this covenant. The covenant recites the invalidity of the will, and binds the parties interchangeably to employ counsel and to bear an equal share of the expense of controverting the will. The covenant then proceeds as follows: “and it is further expressly stipulated and agreed upon by all the contracting parties, that if the will is set aside, and the estate is to be divided between the heirs-at-law and distributees of the said William Little, deceased, that Hugh Little and Patsey or Martha Little, the two oldest children of the said William Little (who are said to have been born out of wedlock) shall have an equal and full share of the said estate of William Little.” Hugh Little and Patsey both signed the bond' and contributed to carrying on the suit, which resulted in setting aside the script and a division of the estate among the heirs-at-law and next of kin, from which the two oldest, Hugh and Patsey, were excluded on account of their illegitimacy. Hobbs, the defendant, after the execution of the covenant, married one of the co-obligors, Polly Sherrill, and as her husband and administrator (she having died in the mean time) received a large amount of money and estate, say $2500, but refused to contribute any thing to Hugh and Patsey ; on account of which refusal, each of them brought suit separately against him on the covenant. In this case, the counsel for the defendant, objected to the form of the action, because the two had not sued jointly. The Court, upon the point reserved, ruled that the action was well brought, and the defendant appealed.

JBoydm, for the plaintiff.

Thompson^ for the defendant.

Manly, J.

Several objections were made to plaintiff’s recovery in this case, all of which have been abandoned in this Cour.t, except the second, in order, viz., that there were two covenantees in that part of the instrument, the breach of which, is assigned as the ground of this action, and that these should have joined. We do not think this objection can be sustained.

The parties to this covenant other than Hugh, and Patsey Little, bind themselves, each separately, to the two latter in the sum of five thousand dollar’s, to allow the said Hugh and Patsey a full share of their father’s estate. The interest of the covantees, in this stipulation, is manifestly several. Damages for its violation result to each, irrespective of the other, and consequently, each may maintain an action, according to the distinction taken in the case of Eccleston and wife v. Clipsham, 1 Saun. Rep. 153. In a note to that case, it is ■stated, that though a covenant be with two or more, jointly, yet, if the interest and eause of action of the covenantees be several, the covenant shall be taken to be several, and each ■of the covenantees may bring an action for his particular damage, notwithstanding the words of the covenant are joint, and for this, there are cited a number of authorities.

The law now seems to be settled, that the insertion, or omission of words of severance, such as “ with them and each of themf can make no difference as to the covenantees, but that the action will, in all cases, follow the interest, without regard to the words of the covenant.

The paragraph cited, on the argument, from 1 Chitty’s Pleading, 12, is based upon a ease, Petrie v. Bury, reported in 10 E. Com. L. Rep. 108, and the language of the author is to be interpreted with reference to the principles decided in that case. It was a covenant with three persons, that if covenantor’s wife survived him, that his heirs, executors .and admistrators should pay to them an annuity for her. Here, a jomt action was held necessary, for the reasons, as stated by the Judges who delivered the opinions; that it was a trust, and the covenantees trustees, who were not to have any part of the money to their own use, but jointly receive the same as a security for the execution of the trust, like a trust conferred, in a similar way, upon executors.

This case recognises the distinction taken by 'Williams in his notes to Saunders, referred to above, viz., that the rights of covenantees as to actions upon the covenants, will depend apon the nature of their interests, whether joint or several.

Pee Curiam,

Judgment affirmed.