
    Brown v. Benight and Wife.
    If one of two joint debtors die, the survivor may be sued for the debt; and if the survivor be insolvent, the estate of the deceased debtor is chargeable for the debt in equity.
    A person set out from this state for Neiv-Orleans on a trading voyage, leaving his wife and five small children in a destitute situation. His debts exceeded the value of his property, and he did not live to .return home. Within a year after his departure, and before his wife had any certain knowledge of his death, she had used the property left by him in the support of the family and in the payment of his debts. Held that, under these circumstances, the widow was not liable, as an executrix de son tort, to the creditors of her husband.
    If a father and son are both called A. B., by naming A. B. the fatherrima facie shall be intended.
    
      B. received from A., resident in Ne-w-York, 100 dollars with a request to buy with the money a tract of land for A. in Indiana, to take the title in A.’s name, and permit the son of A. to occupy the land during A.’s pleasure. B. accordingly bought a tract of land for A. in this state, paid on it the money received from A., took an assignment to A. of the certificate of purchase, and delivered the same to him. The son occupied the land, and paid the further sum of 110 dollars of the purchase-money. Held, that this purchase must be considered as made for the father alone; that the legal and beneficial interest was vested in him; and that the land was not liable for the debts of the'son.
   Blackford, J.

This is a suit in chancery transferred from the Vigo Circuit Court, the Circuit ■ Judge being interested. The bill states, that Samuel Bidleman and William Battels were jointly indebted to the complainant, in 1826, for the price of two-thirds of an Orleans’ boat and cargo of corn; that Bidleman died in Kew-Orleans, within six months or a year after the debt was contracted; that Battels is absent from the country and insolvent; and that a balance of the debt, being 182 dollars, and 25 cents, remains unpaid. The bill further states, that Samuel Bidleman, at the time of his death, was possessed of considerable goods and chattels in Vigo county; that his widow, then Sally Bidleman, took possession of them and sold them; that, besides other property.of the deceased received and disposed of by the widow, there was a certificate for a half-quarter section of land in Vigo county, which had cost him 200 dollars; and that this land certificate, with some other property, was sold by the widow to Benight, with whom she has since intermarried. ■

• The object of the bill is to obtain a discovery'of the assets of Bidleman’s estate, and a payment out of them of the complainant’s demand. The defendants deny the'debt claimed by the bill, except the sum of 33 dollars as the price of one-third of the boat; and this sum is alleged to have been paid. They deny that Samuel Bidleman, deceased, was ever the owner of the land certificate, or of the land, mentioned in the bill. They aver .that the property of Bidleman, made use of by the defendant Sally,was appropriated by her, before her knowledge of Bidleman’s death, to the payment of his debts and the support of his family- They further state, that, since the death of Bidleman, the defendant Benight has taken out letters of administration on the estate; that-the assets which have come to his hands do not exceed 50 dollars; and that.the balance of that sum, after deducting the expenses of administration, he has permitted • the defendant Sally to retain, as part of the 100 dollars given to her by the statute.

, The first inquiry in this case is, whether there is any thing due to the complainant from Bidleman’s estate ? The following is the proof: In the spring of 1826, Bidleman and Battels purchased of Brown two-thirds of a boat, which they loaded with corn of their own,,except about 500 bushels received from Brown and to be sold for him at JYew-Orleans. Brown furnished a hired man and part of the provisions for the trip. The boat soon afterwards, arrived safe at Natchez; where Bidleman and Battels offered the corn for sale, but without success. They left Natchez', two weeks after their arrival, for New-Orleans; and this is the last we hear of the boat or cargo. Neither Bidleman nor Battels ever returned. The former is dead, and the latter insolvent. These facts show, that Bidleman and Battels were jointly indebted to Brown for two-thirds of the boat. Whether or not they were also indebted to him for the corn he furnished, we shall not stop to inquire. On Bidleman’s death, Battels might have heen sued for the joint debt; and on Battels’ insolvency, the estate of Bidleman became chargeable for it in equity .

The next question' is, whether the defendants, Benight and Sally his wife, executrix of Bidleman, are liable to a decree- for the debt, or any part of it, for having wasted the assets of the intestate? It is proved, that when Bidleman set. out with the boat, he left his wife and five small children in a destitute condition; and that his debts were greater than the personal property he left was worth. Within less than a year after his departure, and before any certain knowledge of his death, his wife had made use of this property in the support of his family and the payment of his debts. Among other creditors, she paid the complainant 39 dollars on account of his present demand.- We are of opinion that she did not make herself liable to the complainant for any amount, under these circumstances, as executrix in her own wrong. It is further proved, that, in 1823, Samuel Biclleman, sen., then and still resident in Nezo-Yotk, the father of the Bidleman mentioned in the bill, delivered 100 dollars to Benight with instructions to buy land in Indiana with the 'money for him, Samuel Bidleman, sen.; to take the title in his, the father’s name; and to permit his son Samuel to occupy the land during his, the father’s pleasure. Benight, accordingly, bought the land mentioned in the bill, for Samuel Bidleman, sen.; paid the 100 dollars, money of Samuel Bidleman, sen.; and received the certificate assigned to Samuel Bidleman, by which name both the seller and Benight intended Samuel Bidleman, sen., resident in New-York. Besides the 100 dollars so paid by Benight, Samuel Bidleman, jun. paid to the vendor of the land 110 dollars in property, Benight, after-wards, delivered the certificate for the land to.his principal, Samuel Bidleman, sen. From the time of this purchase, in 1823, the land-was' occupied by Samuel Bidleman, jun., until his departure for New-Orleans in 1826. These are the material facts proved as to this part of the case.

The assignment of this land certificate must be considered, under the circumstances, as having been made to Samuel Bidleman, the father. It is decided that if father and son are both called A. B., by naming A. B. the father prima facie shall be intended. Lepiot v. Browne, 1 Salk. 7. Besides, it is expressly proved that, in the case before us, the father was intended. But notwithstanding the assignment was to the father, if the purchase had been really a joint one by the father and son, a trust would .have resulted to the latter; according to the money paid by him. Elliott v. Armstrong, May term, 1829.—Botsford v. Burr, 2 Johns. Ch. Rep. 405. It appears to us, however, from the testimony, that this purchase was made on account of the father alone, and that all the parties intended that both the beneficial and legal title should be vested in him. What induced the son to advance a part of the consideration-money for his father, or when or how he expected to be repaid, if at all, it is not worth while to indulge in conjecture. It is sufficient for the decision of the cause to know, that the money was not paid by the son with any view of obtaining, by such payment, any title to the land either at law or in equity; and that, in fact, no such title has ever been made to him. It is the opinion of the Court, therefore, that Samuel Bidleman, jun., had no interest in the land mentioned in the bill, and that it cannot be. made liable to the claims of his creditors.

J. Farrington, for the complainant.

A. Kinney, for the defendants.

The account of the administration of Benight himself, as rendered in the answer to the bill, is not contradicted. It shows that there are no assets in his hands.

Per Curiam.

The bill is dismissed with costs. 
      
       By the common law, upon the death of one joint-contractor, the action survives against the other or the rest, and the representative of the deceased is not liable at law. The English commissioners lately appointed, &c. had some doubt whether it would not he desirable to provide that, in the caso of such death, the creditor should have the option of bringing the action either against the survivor or survivors-only, or against the survivor or survivors jointly with the personal representatives of the deceased. They concluded, however, not to interfere with the existing rule. 6 Lond. L. M. 261.
      In Indiana, the representatives of a deceased joint obligor are liable to an action at law, by the statute, in the same manner as if the obligation were joint and several. Rev. Code, 1831, p. 291.
     