Allen v. Tate , 58 Miss. 585 ( 1881 )

Campbell, J.,

delivered the opinion of the court.

The right of appellant to collect the money due by the notes is clear, whether she will be accountable for part of it to the representatives of her deceased husband and co-payee or not. On the death of one of several joint payees, the remedies for collection survive to the surviving payees, who may lawfully receive payment, and may sue at law or in equity without joining the representatives of the deceased payee. 1 Chitty's Pl. 19 ; 1 Washb. on Real Prop. [*424], top p. 576 ; 2 Jones on Mort., sect. 1435 ; Lannay v. Wilson, 30 Md. 536, and cases cited; Martin v. McReynolds, 6 Mich. 70. Certain]}' the defendants cannot object to a recovery by the complainant, for that will bar all claim on them by reason of the notes, and they have nothing to do with the appropriation of the money. From the argument of counsel here, we are led to believe that the case was decided below as if the right of the appellant to maintain her suit depended on her right to all of the money due by the notes, by, virtue of her survivorship of her husband, and the chancellor held that she was not so entitled, and therefore had not the right to collect. As stated above, she ^was entitled to .collect as surviving payee ; and as surviving- ¡ wife she Was -entitled to the notes and to their proceeds. ‘ She and her husband held the land by entireties, and sold it, and took notes for the purchase-money, payable to both. On the death of one the notes vested in the survivor. This was the well-settled rule, in the absence of statute, as to promises to husband and wife. 1 Dan. Neg. Inst. 198, sect. 255 ; 1 Chitty’s Pl. 32; Pender v. Dicken, 27 Miss. 252 ; Draper v. Jackson, 16 Mass. 480; Richardson v. Daggett, 4 Vt. 336 ; Borst v. Spelman, 4 N. Y. 284; Sanford v. Sanford, 45 N. Y. 723 ; Johnson v. Lusk, 6 Coldw. 113 ; Bishop’s Mar. Worn., sects. 103-107 ; Cord’s Mar. Worn., sects. 999, 1031 ;10 Johns. 49 ; Tyler on Inf. & Cov., sect. 254.

The foregoing authorities establish the rule that the surviving wife is entitled, as against the representatives óf the.hus-band, to, a promissory note payable to husband and wife, where it is given for property or money of the husband alone. A fortiori would that rule apply where, as in this case, the note was given for laud held by entireties, and made payable to the husband and wife. The presumption is irresistible that' in selling the land and taking notes for the purchase-money, payable to themselves, they intended the notes to represent the laud, and in case of the death of one of them, to survive to the other, as the land would have done in like case.

We say nothing as to the effect of our statutes upon the rule as to the right of the wife, as survivor, to a note payable to herself and her husband, except in the state of case presented by this record. But, as it was held that our legislation had not abolished estates bv entireties, it seems to follow that the rule of survivorship should apply to notes taken upon the sale of such an estate, payable to the husband and wife.

This announcement does not conclude the representatives of the deceased husband, who arc not parties to this suit, but we make it in response to the argument of counsel-, and in view of the ground of the decision by the'chancellor.

The decree, is reversed, the demurrer overruled, and the cause remanded, with leave to the defendant to answer the bill within thirty days after the mandate herein shall have been filed hrthe court below.