Opinion
June Term, 1853.
An executor cannot join in the same bill a claim for a debt due to him individually, with one for a debt due to him in his representative capacity.
The bill stated "That he (the plaintiff) was the owner of a tract of land, which he authorized the deceased (his intestate) to sell, which he did to A., and took in payment the bond of B. with the endorsement of A. This the deceased also endorsed and delivered to the defendant S. P.", and claimed the bond as belonging to the plaintiff individually, upon the ground that the land was his: Held,
1. That if the plaintiff sued individually, the representative of the deceased should have been made a party to the bill; and that it is no answer to this objection, that the plaintiff is also the representative of the deceased.
2. In order to render the defendant S. P. liable to the plaintiff, in case he sued as administrator, it was necessary he should have averred a want of assets.
THE bill in this case was filed to the Fall Term, 1847, of the Court of Equity of ANSON. It alleged that one Reading Anderson of whom the complainant was administrator, had been doing business for the complainant for several years previously to his death in 1846. Among other transactions it stated the following: — That the complainant was seised of a tract of land in Anson county which he wished to sell, and authorized the said Reading to sell it, who did sell it to a Mr. McKorkle, and took in payment a bond on Joseph Blair with an endorsement of McKorkle, and that the said Reading afterwards delivered that bond to the defendant, Sarah Paul, with an endorsement to her, or to some one in trust for her, and that since the death of Reading Anderson, the defendant Sarah having possession thereof, has received from the obligor a part of the money due on it, and delivered the bond to Blair to be cancelled, who has destroyed it, and has given to the said Sarah, or to some other person as trustee for her, a new bond for the residue of the money. The bill then charges that the defendant Sarah, at the time of the endorsement to her, and at the time of the partial payment and the substitution of the new bond, knew for what consideration the bond had been endorsed to the deceased; and that the other defendants were active instruments in procuring the endorsement to be (197) made to the defendant Sarah, with the understanding that there was to be a division of the money arising therefrom among all of them.
Winston, for the plaintiff.
Dargan and Kelly, for the defendants.
After other statements not necessary to be repeated here, the bill prayed that the defendants "may account with your orator for the assets of the deceased in their hands, or the hands of either of them, and for the money and effects belonging to your orator deposited in their hands by the deceased as is hereinbefore charged, and that your orator may have such other," c.
The answers of the defendants were filed to Spring Term, 1849, and at Spring Term, 1853, the case was transferred to this Court.
The bill cannot be sustained in its present form. It is filed by Peter May, as the administrator with the will annexed, of Reading Anderson, and part of the prayer is, "that the "defendants may account with the plaintiff for the assets of the "deceased in their hands," and another prayer is that the defendants may account "for the effects belonging to your orator "deposited in their hands by the deceased." Here are two distinct and independent causes of action united. One, to call in and collect the assets of the deceased, and the other, to follow the effects of the plaintiff, effects due to him individually and in his own right. At law, an executor or administrator cannot join a count for a debt due to him individually, with one in his representative capacity. Neither can they be joined in Equity. Adams Equity, 2nd edition 567. Davon v. Tanning, 4 Johns. Ch. 199. Bedsole v. Monroe, 40 N.C. 315. And the reason assigned is, that different decrees and proceedings might be required; for convenience therefore, the joinder will not be permitted. For this cause the defendants might have demurred. Waiving however this objection, the case has been put in the argument before us, upon the second ground. The bill in the stating part, alleges that the deceased Reading Anderson was the agent of the plaintiff to carry on the business of selling groceries, and that the plaintiff furnished all the capital. It then states "that he (the plaintiff) was the owner of a tract of land, which he authorized the deceased to sell, (198) which he did to one McKorkle, and took in payment the bond of Joseph Blair with the endorsement of McKorkle, and which he, Anderson, endorsed and delivered to the defendant Mrs. Paul." The bill claims this bond as belonging to the plaintiff individually, upon the ground that the land was his. Upon this ground alone the case has been argued before us. Waiving all remarks upon the suspicious nature of the whole connection between Anderson and the plaintiff in this business, and looking upon the bill pro hac vice as filed by Peter May to follow his bond into the hands of Mrs. Paul and her husband Mr. Paul, has the plaintiff entitled himself to a decree? We think not. It is a general principle in Equity, that all persons interested in the subject matter in dispute must be made parties. The bond was by McKorkle, the obligee, endorsed to Anderson, and by him endorsed to Mrs. Paul. By these several endorsements the legal title to the instrument is in the defendant Mr. Paul. In calling him to account for it, his assignor is a necessary party, because the defendant Paul would be entitled to redress out of him. The reason of the general rule above stated is, that a Court of Equity seeks to arrange by one suit all the claims arising out of the same transaction between the parties interested. The defendants then are entitled to have the representative of Reading Anderson before the Court, in order that their respective rights and interests growing out of the transaction may be settled. Another reason is, that the estate of Anderson is primarily answerable, and the defendant's secondarily. If the representative of Anderson was properly before the Court and the plaintiff entitled to a decree, the decree would be that it should be discharged in the first place out of his estate, and if there were no assets, or not sufficient, then by the defendant Paul. Powell v. Mathis, 39 N.C. 84; Murphy v. Moore, Ib., 118; Hoyle v. Moore, Ib. 175. It is objected on the part of the plaintiff May, that he is the representative of Anderson, and that he could not make himself a defendant. But who has placed him in that position? It was his own voluntary act, and he must abide the consequence.
It is no sufficient answer to the objection for the want (199) of parties, that one interested is dead, and there is no personal representative; it is the duty of those seeking relief by bill in Equity in a matter in which the deceased person is interested, to procure a representative, and it can therefore be no answer for the plaintiff that he is the representative. Martin v. McBride, 38 N.C. 531. Further, he has not averred a want of assets. On the contrary, an inventory has been filed as an exhibit, showing that he has in his hands, of the deceased Anderson's effects, more than the amount of his claims, and out of which he has a right of detainer.
The truth is, the bill is so singularly constructed that no relief can be had under it.
PER CURIAM. Bill dismissed with costs.