
    John D. Scott, Administrator de bonis non of Johnson Silverberg, deceased, vs. Charles J. Searles, William Laughlin et al.
    The transfer of a note, due to an estate by the administrator, in payment of his own debt, gives to the assignee, with notice, no right of recovery.
    If a note given to an administrator for the purchase of personal estate of the decedent, be transferred by the administrator, in payment of his own debt, a subsequent administrator, the first having resigned his office, may file a bill in equity to enjoin the collection of the note by the assignee ; and the chancery court having entertained jurisdiction to aid in the execution of the trust imposed on the administrator, and to prevent the multiplicity of suits, may grant relief, and direct the note to be given up to the acting administrator.
    On appeal from the superior court of chancery; Hon. Robert H. Buckner, chancellor.
    John D. Scott, administrator de bonis non of the estate of Johnson Silverberg, filed a bill in the superior court of chancery, against Charles J. Searles, William Laughlin, Sarah Silverberg, Thomas Jones, William G. Meredith, and his wife Martha Meredith, Margaret Stovall, William C. Stovall, Newton Stovall, Sarah Jane Stovall, Jasper Stovall, Brittain Stovall, and Henry Stovall, the .said William C., Newton, Sarah Jane, Jasper, Brit-tain and Henry, being children of Louis Stovall, deceased.
    The bill charges that Johnson Silverberg died about the 6th of November, 1838; that Charles J. Searles and Michael Yanderherst, took out letters of administration on his estate; that Yanderherst died in the fall of 1839, and Searles acted as surviving administrator until the May term, 1841, of the probate court of Madison county, when he resigned his letters; that Searles and Yanderherst, by order of the probate court, sold the personal estate of the said Silverberg, at public sale, on the 4th of February, 1839 ; that at such sale, Sarah Silverberg bought property to the amount of $4178 21, for which she, with Louis Stovall and Thomas Jones, gave their bond, payable to the said administrators, twelve months after date; that Stovall has died since the bond was given, and there is no administration on his estate, the first administrator, Meredith, having resigned in July or August, 1843. The bill further states that Searles has fraudulently assigned said bond to William Laughlin, and that said assignment was without authority, contrary to law, and for the private benefit of Searles and Laughlin; that Sarah Silverberg and Thomas Jones are, to all appearance, insolvent; that complainant is not certain whether Jasper Stovall is of age or not, and that there is not, and never has been any guardian to the minor children of Louis Stovall; that William Laughlin has brought suit on said bond for the whole amount thereof, in the circuit court of Madison county, which is still pending and undetermined; that the Commercial Bank of Natchez has illegally and fraudulently issued a garnishment on a certain judgment recovered by said bank against Charles J. Searles, as surviving administrator of said Silverberg, for $2175 99, requiring the said Sarah Silverberg, Thomas Jones, and one Alfred T. Moore, the attorney of said William Laughlin, to answer thereto, and discover what they owe to said Charles J. Searles, administrator of said Johnson Silverberg, or what effects they have in their hands, belonging to said administrator or said estate; that said judgment of said Commercial Bank, and other judgments of said bank against said administrator, Searles, obtained at the same time, were by fraudulent and illegal agreement between said bank and Searles, 'suffered by default, on false and pretended claims; that there is a fraudulent agreement between Searles, Laughlin, and the bank, to convert and appropriate the sum of money, owing on said bond, to their own purposes ; and for this they are working into one another’s hands; and that the bank issued said garnishment for an amount to suit their fraudulent intents, though there were other judgments which had also been fraudulently obtained by said bank against said administrator, Searles, to about the amount of $20,000, and though the sum due on said bond, was $4178 21, with interest thereon from the 4th of February, 1840.
    
      The bill further states that in July last, the complainant filed a declaration, in the Carroll circuit court, on said bond, against the said Meredith, as administrator of Louis Stovall, but that about that time, Meredith resigned his letters of administration on Stovall’s estate. The bill charges that the Commercial Bank is insolvent, and that said Searles and his securities on his administration bond, are also insolvent, and that Laugh-lin is a non-resident, and it is not known whether he is solvent or not. The bill also states that there is a large amount of the personal estate of said Louis Stovall, and makes an exhibit of the inventory thereof, made by the administrator.
    The bill prays that Searles and Laughlin discover for what consideration, and at what time said bond was assigned, and, if in payment of a debt, who were the parties, debtor and creditor, and how such debt was originally created, and all about it; that the Commercial Bank of Natchez discover why she did not issue her garnishment for the whole amount of said bond; and that she state the whole indebtedness at any and all times of Silverberg, Searles, and of the firm of J. Silverberg & Co. and how much was paid to said bank by them at any and all times, and how much of the effects and debts of said J. Silver-berg, J. Silverberg & Co. and a certain firm of M. Yanderherst & Co. said bank has received from the said Searles, and all assignments made to said bank by said Searles in his own right, and as administrator, surviving partner of any and all firms or otherwise; and whether there was not an agreement between said bank and Searles that the judgment upon which said garnishment issued, should be obtained by default. The bill also prays that Margaret Stovall discover the ages of her infant children.
    The bill also prays that Laughlin be compelled to deliver up the bond, and the assignment made thereof by Searles to Laughlin, be cancelled; that Sarah Silverberg and Thomas Jones be decreed to pay complainant the full amount of said bond, and if they cannot be made to pay the same, that the property of Stovall’s estate may be sold and applied to the payment of said bond, and that a receiver be appointed of the profits of .Stovall’s estate, and for an injunction against Laughlin, to stay further proceeding at law, in said suit of William Laughlin v. Sarah Silverberg and Thomas Jones, on said bond, and against the Commercial Bank, from proceeding further on said garnishment.
    The answer of Charles J. Searles, admits the death of Silver-berg, at the time stated in the bill; that he and Yanderherst were the first administrators of Silverberg’s estate; that Yander-herst died, and he resigned his letters of administration, at the time stated in the bill; that they as administrators sold, at public sale, by order of the probate court, the personal property of said estate, on the 4th day of February, 1839; and that at such sale, Sarah Silverberg purchased property to the amount of $4178,50, for which she, with Louis Stovall and Thomas Jones, gave their bond, payable to said administrators, twelve months after date.
    That he assigned the bond to Laughlin, but denies that it was fraudulently done; and states that upon the final settlement of his administration of said estate of Silverberg, he accounted to the probate court for all the personal estate of the said Silverberg, which had come to his hands, except a balance of $3571 57; that upon such final settlement, he was allowed by the probate court the sum of $1006 38, for his services as administrator, which allowance reduced the said balance to $2565 19, leaving still due and unpaid the said bond of Sarah Silverberg and others of $4178 50, and upon which, after deducting said balance of $2565 19, there would remain due to him the sum of $1563 02, to secure which, he insists he had a legal right to retain any assets of said estate then in his hands; that the said bond of Sarah Silverberg and others, being the only assets then in his hands, and being indebted, as surviving partner of J. Silverberg & Co. and Searles & Yanderherst, to the said Laughlin, he, a short time previous to his final settlement with the probate court, assigned said bond to Laughlin, in part payment of such indebtedness, subject, however, to the payment to legal representatives of the estate of Silverberg, from the proceeds of said bond when collected, of the balance of $2565 19, due said estate; that said bond was retained by him, subject to the aforesaid conditions.
    The answer admitted that Laughlin had instituted suit for the whole amount of the bond, and was then prosecuting the same in the Madison circuit court. Respondent was ignorant of the garnishment of the Commercial Bank of Natchez against Sarah Silverberg, Moore and Jones, and of proceedings thereon he knows nothing; he denied that the judgments of the Commercial Bank of Natchez against him, as surviving administrator, under one of which said garnishment was issued, were fraudulently obtained, or were obtained on false and pretended claims against said estate; denies fraudulent combination and mal-appropriation, and states ignorance of the suit, instituted by complainant, against Stovall’s administrator.
    Mr. Laughlin answered, admitting that Silverberg died in the fall of 1838 ; that Searles and Yanderherst first took out letters of administration on his estate; but he knew nothing of Yan-derherst’s death, Searles’s resignation, of the sale of the personal property of Silverberg’s estate, and of the purchase of any of said property by Sarah Silverberg; he denied that Searles fraudulently assigned the bond in complainant’s bill, mentioned to' him, and stated that in the spring of 1841, Searles informed him that he, Searles, had assigned to him, and placed in the hands of his attorney, A. T. Moore, for collection the said bond; that said assignment was made subject to the payment of $2565 19 to the legal representatives of the estate of Silverberg, from the proceeds of said bond when collected ; and that at the time said assignment was made, Searles, as surviving partner of the firms of J. Silverberg Co. and Searles &■ Yanderherst, was indebted to him, and the assignment was made to secure the payment of that indebtedness; he denied collusion in said assignment, or any fraud of which he was cognizant.
    Respondent admitted that he instituted suit on said bond for the whole amount thereof, but denied that such suit was instituted for the purpose of recovering and appropriating to his own use any other portion than the remaining proceeds of said bond, after the payment of said sum of $2,565 19 to the legal representatives of Silverberg’s estate; of that sum he admitted himself a mere trustee, and held himself at all times amenable to the orders of this court in relation thereto; and stated his willingness to surrender said bond to the complainant upon his paying or securing the payment of the balance due on said bond, after deducting the said sum of $2,565 19.
    As to the judgments of the Commercial Bank of Natchez against Searles as surviving administrator, the garnishment issued thereon, and all the proceedings under the same, respondent was wholly ignorant; he denied all combination and fraudulent appropriation, and that he was a non-resident. .
    The defendants entered a motion to dissolve the injunction upon the bill and answers of Searles and Laughlin, which motion the chancellor sustained, and ordered the injunction to be dissolved; from which order the complainant prayed an appeal to this court.
    
      Samuel Scott, for appellant.
    That the bond or note under seal, the subject of suit, could not be legally assigned by Searles to Laughlin for the purposes stated in their answers, I think palpable upon many grounds.
    1. The bond being payable on its face to Silverberg’s administrators, was notice to Laughlin that it belonged to the estate of Silverberg. Miller v. Helm, 2 S. & M. 687.
    2. An assignment with or without notice, when made by an administrator for such, purposes as stated in the answers of these defendants, cannot be sustained or sanctioned by law. Prosser v. Leatherman, 4 Hoav. R. 240; Miller v. Helm et al. 2 S. & M. 687. See also on this point, Briscoe v. Thompson, Freeman’s Ch. Rep. 155.
    3. “ Such an assignment, changing the rights of the parties, cannot be sanctioned in law, and thus far countenance an illegal contract.” Prosser v. Leatherman, 4 How. R. 240.
    4. The assignee, Laughlin, having taken the bond after the same became due, took it subject to all liabilities and equities existing against it. Chit, on Bills, 244, 9th Am. from 8th Lond. edit: Taylor v. Mather, 3 Term Rep. 83, in note; Brown v. 
      Davis, lb. 80 ; Rothschild v. Comey. 9 Barn. & Cres. 391; Bur-rough v. Moss, 10 lb. 558.
    5. Again: We have shown, as we think, that Searles could not assign the entire bond or the whole sum due thereon by the above authorities, for the purposes stated in the answers. Neither could a part of the bond be assigned by him; for there is no better settled principle than that a part of a contract cannot be assigned, 5 Wheat. R. 277; Mandeville v. Welch, 3 Kent’s Com. 89; Chit, on Cont. 483 (note 1); 1 Pirt. Dig. 41. See 24 lb. 178; Douglas v. Willceson, 6 Wend. 637; 1 Bibb, 178; Gib-,eon v. Cook, 20 Pick. 15 ; Robbins v. Bacon, 3 Greenl. 346.
    6. But again: The bond being of itself notice to the party taking it, he was guilty of fraud by knowingly assenting and 'Cooperating with the administrator in a breach of trust in taking an assignment of the bond. Miller v. Helm, 2 S. & M. 687; Prosser v. Leatherman, 4 How. 240; 2 Williams on Ex’rs. 612, and authorities there cited; Graff v. Castleman, 5 Rand. 195; Dodson v. Simpson, 2 lb. 294; Field v. Scheffelin, 7 John. Ch. R. In the above stated case of Miller v. Helm, this court says, “.as the administrator cannot appropriate such paper to the payment of his own debts, or to a purchase of property for himself without a violation of his duty, the indorsee who takes it for such purposes, knowing that it is a part of the assets, is a participant of the fraud, and cannot be allowed to profit by it.”
    7. The administrator, Searles, could not be a purchaser from himself either immediately or by means of a trustee. 2 Williams on Ex’rs. 613; Watson v. Toon, 6 Mad. R. 153. See 1 Mad. Ch. Ill to 114, and authorities there cited.
    All advantage made by the trustee enures to the benefit of the cestui que trust.
    
   Mr. Justice Clayton

delivered the opinion of the court.

This is an appeal from an order of the superior court of chancery, dissolving an injunction. The facts, so far as the point now before the court is involved, are briefly these : The defendant, Searles, and one Vanderherst, now deceased, became the administrators of the estate of Johnson Silverberg, deceased. At their sale of the personal estate of the decedent, his widow purchased property to the amount of more than $4000, and executed her note with sureties payable to the administrators. Yanderherst died; Searles continued to act as administrator until May, 1841, when he settled his account and resigned. The note of Sarah Silverberg is still unpaid, and it was assigned by Searles to his co-defendant, Laughlin, in payment of a debt of his own, whether before or after his resignation, does not distinctly appear.

The bill was filed by the administrator de bonis non of Silver-berg, for the purpose, among others, of restraining the collection of the note by Laughlin, and of having it delivered up to the complainant. There are a great many other parties, and a great variety of incongruous objects in the bill, but with these we have at present no concern. The chancellor dissolved the injunction, from which order this appeal was taken.

In Prosser v. Leatherman, 4 How. 240, the court decided that a transfer of a note due to an estate, by the administrator, in payment of his own debt, gave no right of recovery to the as-signee with notice. In Miller v. Helm, 2 S. & M. 695, the court said : The note has been improperly transferred, and the complainant seeks its restoration, together with a foreclosure of the mortgage, for which last purpose at least, chancery is the proper forum.” The case of Stubblefield v. McRaven, 5 S. & M. 180, was in many of its features very much like this. The court said, if McRaven (who was the first administrator,) is proceeding to collect debts, which properly belong to the estate, he may be prevented, as the law substitutes complainant to all rights which may be necessary to prosecute for claims against the estate.”

The fair inference from these cases is, that the complainant had a right to the injunction in this cause, and that it was improperly dissolved. The right of a court of equity to compel a delivery of the note is apparently less clear. In Miller v. Helm this point was waived.

The assets of an estate constitute a trust fund for the payment of debts and legacies, or distributive shares. Each successive administrator is a trustee. If it be necessary for the administrator de bonis non to come into equity, to preserve the fund from waste, the court, in order to aid in the execution of the trust, and to prevent multiplicity of suits, may finally dispose of the case, and give relief.

In this case Searles claims an interest of about one-third in the note, on account of what is due him from the estate, and asserts a right to retain to that extent.

A cause of action is entire, and cannot be severed. A part of a note cannot be transferred, -so as to give right to sue for such part. The complainant, therefore, has a right to the note, that he may proceed to collect it. Yet the chancery court should make such order as will protect the interest of Searles or his assignee. The rights of all may be thus preserved.

Nothing but the order dissolving the injunction was appealed from, we are consequently confined to that order. The same is hereby directed to be reversed, the cause remanded, and the injunction retained until the note is delivered to complainant.

What further order may be necessary in regard to other parties, and other objects of the bill, we do not now undertake to say.

Decree reversed and cause remanded.  