Case 42 — PETITION ORDINARY TRANSFERRED TO EQUITY—

November 12.

#### Perry & Minor *v.*Perry’s Executor.

APPEAL FROM OWEN CIRCUIT COURT.

1. The PAYMENT OF TIIE WHOLE DEBT TO ONE OF TWO JOINT PAYEES of a note extinguishes the rights of both. The obligor is not bound to hunt up each joint obligee and pay him his distributive share.

2. Where the survivor of two joint payees or a note was the sole devisee of tiie deceased payee, in a suit by her alone upon the note, the defendants were not prejudiced by the action of the court in overruling their special demurrer to the petition based upen the ground that the personal representative of the deceased payee should have been made a party-plaintiff, as the payment of the judgment to plaintiff will extinguish the debt. And, besides, it must be presumed, after the lapse of five years from the death of the testator, that there are no unpaid creditors, there being no suggestion in the record that there are any.

ü The court is by no means certain that it was error to overrule the special demurrer, but as the defendants could not, in any event, have been prejudiced, that question is not decided.

XiINDSAY & BOTTS for appellants.

1. The executrix of the will of B. H. Perry, deceased, should have been a party-plaintiff. The court therefore erred in overruling the, special demurrer to plaintiff’s petition. (Civil Code, secs. 18, 21.)

2. The court erred in sustaining the exceptions of appellee to the deposition of E. R. Perry, th& appellee having herself testified as a witness in her own behalf.

3. The judgment is not sustained by the evidence, for the reason that there was no proof contradicting the divers witnesses of appellant.

WM. CARROLL for appellee.

1. If the court' erred in overruling the special demurrer the substan-tia] rights of appellants were not prejudiced thereby, and, there*243fore, there can be no reversal on that account. (Civil Code, sec. 756.)

2. Greenup Perry’s representative was neither a necessary nor a proper party under the old practice, and in fact no joint action could he maintained by Lucy Perry and such representative, because the remedy survived to her alone, as she represented not only herself but the representative of Greenup as his trustee, and was, therefore, the only party in interest. And that practice has not been changed by the Civil Code. (Carneal’s Heirs v. Day, &c.,Litt. Sel. Cases, 495; Civil Code, sees. 18, 21, 402; 2 Statute Laws of Ky., 876; 2 Rev. Stats., 228; Gen. Stats., p. 586; Ky. Stats., secs. 2348, 2349; Maraman v. Trunnell, 3 Met., 146.)

JUDGE HAZELRIGG

deliveked the opinion oe the court.

In 1884 tbe appellants executed their joint note to one B. H. Perry for $1,000. The payee died shortly thereafter, and the appellee and her brother, Green Perry, as his sole devisees, became the owners of this note.

On March 12, 1885, the note was renewed and $500 more money was loaned to the appellants, who executed their joint note to Green and Lucy Perry for the sum of $1,586.65. Green Perry died within a few weeks after this, and the ap-pellee, as his sole devisee, became the owner of the note. Whether or not any one ever qualified as the personal representative of Green Perry does not appear. Nor does it appear whether there were or not any debts against his estate.

In September, 1890, the appellee brought suit on the note of $1,586.65, setting up the death of her co-payee, and exhibiting his last will and testament as evidence of her sole ownership of the paper. To her petition the appellants filed a general and special demurrer. These were overruled, and by their answer appellants pleaded a payment of $1,000, made to B. H. Perry a few weeks before his death. Upon motion of the appellants the case was transferred to equity, and the chancellor in 1892 rendered a judgment in favor of the appellee. *244On tbe issue of fact raised by tbe pleadings, we do not doubt tbe correctness of tbe chancellor's finding.

Tbe only competent and material proof offered by tbe appellants on this issue is by tbe witness, Poland, wbo testifies that in February, 1885, when be was living in Port Royal in George Grimes’ bouse, be saw E. R. Perry, one of tbe obligors in tbe note, pay to B. H. Perry $1,000 on tbe streets of Port Royal, and that B. H. Perry did not bave tbe note with bim, but promised to put tbe credit tbereon when be went to bis bouse, which was some half mile away.

Tbe reputation of Poland is shown to be bad by a number of witnesses, and be is supported by a number of others. His testimony, however, is materially shaken by tbe statements of Geo. and Chas. Grimes, wbo prove that Poland lived in tbe Geo. Grimes bouse from tbe fall of 1886 to tbe spring of 1887, and it was tbe only time Poland ever lived in Port Royal. B. H. Perry was dead before this. Tbe witness, P. O. Minor, a son of tbe appellant, Geo. C. Minor, wbo it is said by mistake renewed tbe old note for too much by $1,000, testifies that be took up tbe old note, which ought to have bad the credit of $1,000 on it, and delivered it to bis father. This was in 1885, and yet no effort seems to bave been made to correct this mistake until some five years after tbe transaction and after this suit was brought. If tbe appellants are right in their contention their negligence has made it impossible to grant them any relief.

It is urged, however, that tbe appellee, wbo was one of tbe payees of the note, and the sole owner of it under tbe will of her co-payee, cannot maintain the action in her own right, and this presents an interesting legal question. It is manifest, however, that so far as this case is concerned it is a purely technical question, and its determination the one way or the other does not affect tbe substantial rights of tbe *245appellants. If the court is convinced of such fact from the record, it cannot reverse the judgment below, as we are required to disregard all errors not affecting the substantial rights of the parties. (Sections 134 and 756 Civil Code.)

It is manifest that the appellants have not been precluded in an}’ particular, by the chancellor’s refusal to sustain their demurrers, from setting up their only defense, which was the payment of $1,000. And it is also evident that it is wholly immaterial to them whether the appellee or the representative of her brother is entitled to the proceeds of the note sued on. The only possible question in which they can be interested is: “When we pay this judgment is it an extin-guishment of the debt?” We are of the opinion that this question must be answered in the affirmative.

The rights of the original obligees were joint, and a payment of the whole debt to one of them would extinguish the rights of both. The obligor is not bound to hunt up each joint obligee and pay him his distributive share. By the death of one of the obligees the character of the original joint right is not changed. At the common law the survivor would collect and hold it as owner of the whole, but since our statute, abolishing this rule, he would hold for the real owner. The right of property does not survive, but in this instance passed by devise to the other and surviving joint owner, so that she was, in fact, the sole real owner.

The personal representative of Green Perry, if there was one, could, at most, hold only in trust for creditors, if there were any. After the lapse of five years from the death of the testator, and in the absence of any suggestion that he left any creditors, or, if so, that their debts remain unpaid, we can not conceive that the substantial rights of the appellants have been prejudiced by the judgment below, even if their special demurrer had been improperly overruled. But *246that it was error to overrule it we are by no means certain. Before tlie adoption of the provision of the Code (section 18) requiring every action to be prosecuted in the name of the real party in interest, with certain exceptions not necessary to notice, it was well settled that while the statute of 1796 abolished the survivorship of the right of property, the right of action survived to the survivor. The heir, devisee, etc., of the deceased joint owner became equitably entitled to his. interest, but the right of action remained in the surviving joint tenant.

It may be that the provision of the Code referred to has changed this rule. In view of the statute, however, providing that the interest of a joint tenant who dies shall descend to his heirs or pass by devise, etc., but not so as to affect the mode of proceeding on any joint contract or judgment, we are not satisfied that the right of action does not survive as it did formerly. (Kentucky Statutes, sections 2348, 2349.)'

This question, however, is more interesting than important in this case, and we need not decide it. We are convinced that there is no error in the proceedings below or judgment appealed from affecting the substantial rights of the appellants.

Judgment affirmed.