Kunkel v. Fitzhugh

Goldsbokough, J., delivered the opinion of this Court. The order ratifying the account stated in this case, must be affirmed. The claim to the allowance of which, the appellant objects, is made by Montgomery Johns, surviving executor of John Johns, on a single bill for $4,000, executed to his testator on the 11th of July 1855, by Peregrine Fitzhugh, with Sarah, his wife, and Sophia Fitzhugh as joint makers and sureties. The record shows, that Peregrine Fitzhugh, to secure the payment of this obligation, and his sureties from loss on account of the liability thus contracted, executed a mortgage to Sophia Fitzhugh upon six horses, forty mules, six wagons, and the harness and gearing belonging thereto, which were then used by him in his business at the Catoctin Iron Works, of which he was proprietor.

Afterwards, on the 25th of Nov., 1856, Fitzhugh, having agreed with the appellant to form a co-partnership for manufacturing iron, sold, and with his wile and Sophia Fitzhugh, conveyed to him an undivided moiety of the property, real and personal, known as the Catoctin Iron Works; the appellant retaining in his own hands, in accordance with the terms of his purchase, $10,000 of the purchase money, to satisfy what was then ascertained and assumed to be his proportion of the liens then existing on the ⁵⁷⁶ property. The dissolution of this co-partnership occurred on the 21st of April, 1858, when Fitzhugh entered into another engagement with the appellant for the exclusive possession of the joint property, and payment of the co-partnership debts. To secure the performance of this last agreement, he executed a mortgage of the co-partnership property to the appellant, and failing to comply with the conditions stipulated, the appellant then filed his bill for a sale of the mortgaged property, including that covered hy the mortgage to Sophia Fitzhugh; upon which sale was made, and the proceeds of the property, covered by the last mentioned mortgage, separately reported for distribution. At that stage of the case, Montgomery Johns, as surviving executor of John Johns, and holder of the single bill for $4,000, intervened by petition, praying that he might be substituted to the rights of Sophia Fitzhugh, and have payment of his claim out of the proceeds of the property mortgaged to her.

The only material question arising on these facts, is in regard to the right of substitution claimed by Montgomery Johns, which is resisted by the appellant on several grounds. We have, however, concluded, after a careful examination of the appellant’s printed argument, and of the evidence on which he founds his objections, that they are not well taken. The fund in question was brought into a Court of Equity, upon a proceeding properly instituted hy himself, and he is not now at liberty to dispute the jurisdiction of the Court over the subject matter of the proceeding, nor its power to make distribution according to the equitable rights and