The Unknown Heirs of Whitney v. Kimball, 4 Ind. 546

Perkins, J. Warren Kimball, in behalf of himself and other creditors, filed a bill in chancery in the Lagrange Circuit Court, setting forth that Horace Thatcher and Michael T.

Whitney were indebted to him in Ohio, by promissory note, in the sum of 400 dollars; that about one year after the execution of said note, to-wit, in 1838, said Whitney departed this life; that in January, 1839, judgment was obtained on the note in Ohio, against the other joint maker, a man destitute of all property, and who, in 1842, procured his discharge in the United States District Court of Ohio as a bankrupt; that Whitney, deceased, left no property except a tract of land particularly described, lying in Lagrange county, Indiana; that he left heirs whose names were unknown.

He prayed a decree for the sale of the land, &c. No affidavit was annexed to the bill, nor did it allege that the heirs were non-residents, nor that no administrator had been appointed on Whitney's estate. Notice by publication in a newspaper, on a return of “not found” by the sheriff, was given of the pendency of the suit. Default by the defendants. Creditors, other than the plaintiff, Kimball, were permitted to come in and prove their claims. Sale of the land decreed, &c. To this decree it is objected— 1.

That the creditors had not obtained judgments upon their claims before attempting to enforce their collection by this proceeding. Where the debtor is not dead, and possesses an equitable interest in real estate, inasmuch as by law the creditor acquires by judgment, a lien on real estate in which such debtor has the legal interest, equity, in aid of the law, carries along the lien, and enforces it against real estate in which the debtor has only such equitable interest.

And as, by law, the creditor acquires, by judgment and execution, a lien on the personal property to which the debtor has the legal title, equity enforces such lien on the equitable interest of the debtor in personal property. But it does this only where a judgment, which constitutes the lien at law in the one case, and a judgment and execution in the other, have been obtained. Where, however, the original debtor is dead, the law is settled in this state, that a judgment, even at law, need not be obtained before going into chancery for the collection of the debt. In Martin v.

Densford, 3 Blackf. 295, the Court say: “It is true that it is a well-settled general principle, that a party cannot apply to a court of equity, if he have a full and complete remedy at common law. To this general and salutary principle there are, however, a few exceptions, one of which is, where the debtor is dead, and the creditor has to proceed against his heirs, executors, or administrators. In such cases, courts of equity have concurrent jurisdiction with courts of law; and the creditor may elect into which court he will go.” See, also, Sweny v. Ferguson, 2 Blackf. 129.—O'Brien v. Coulter, id. 421.—Kipper v.

Glancey, id. 356.—Bryer v. Chase, 8 id. 508. This jurisdiction rests on the ground that executors, administrators and heirs, are, or may be, trustees for creditors, and, hence, are liable to be called to account in chancery. And if, in a given case, a remedy exists at law also, the two jurisdictions are, in such case, concurrent. 2. The second objection is, that Whitney's insolvency was not proved. There is nothing in this objection.

Chancery having, as we have seen, jurisdiction in the first instance, and independent of all accidental circumstances, for the collection of the debt, the question of solvency or insolvency could have no influence with the Court in the determination of the cause. 3. It is objected that creditors, other than the plaintiff in the bill, were permitted to come in and prove their claims. But this bill was filed by the plaintiff expressly in behalf of himself and all other creditors.

He did not, even if he could have done so, (a point on which it is not necessary for us now to say anything), claim any preference over other creditors in the payment of his demand. And where a bill is filed by one, or a few, in behalf of all the creditors, all are allowed to come in under the decree, prove their claims, and have them paid in the course of administration. Story’s Eq. Pl., p. 125.—Barton v. Bryant, 2 Ind. R. 189.—McNaughtin v. Lamb, id. 642. R. Brackenridge, for the plaintiffs. J. B. Howe, for the defendant. 4.

There was no allegation in the bill that an administrator had not been appointed on Whitney’s estate. This is a good objection. The bill should have made the administrator or executor, if either existed, a party; and if neither existed, it should have alleged the fact in excuse. The reason is, the personal estate which the executor or administrator represents, is the primary fund out of which debts should be paid. 5. The point is also made, that there is no affidavit to the bill, or in the case, that the names of Whitney’s heirs were unlmown; and it presents a radical defect in the proceedings.

The statute of 1852, R. S., 2 vol., p. 36, which is a transcript of that of 1843 upon this subject, (see R. S. of that year, p. 833), enacts that the plaintiff “shall annex to his complaint an affidavit of his want of knowledge of their names, and that their residence is, as he verily believes, not in this state.” This statute must be substantially complied with. Per Curiam. The decree is reversed with costs. Cause remanded, &c.