Wilkes v. Harper. out issue, and wholly insolvent. He had spent all his share of the estate, except his remainder in the house 28 Laight street, which is worth less than the Garnett debt. There were judgments against him when he died, to more than $50,000. The complainants are his heirs and next of kin, and George Wilkes is his administrator. On the 7th of January, 1837, the defendants recovered a judgment against Horatio Wilkes for $2838 40, for an individual debt of his, having no connection with the estate of C. W. In May, 1844, they sued out a scire facias against the complainants and others, in order to have execution against the interest of Horatio W. in the Laight street property. The complainants claimed a prior lien upon that interest in respect of the Garnett debt, and of the Campbell debt if that be established against them. The bill prayed for a decree accordingly, and that Horatio's interest might be sold, and the proceeds applied to the complainant's claim; and for a perpetual injunction against the scire facias. The answer insisted that the complainants have no lien upon the real estate in question, nor any right thereto which is not subsequent to the lien of the defendant's judgment. W. M. Evarts and J. Prescott Hall, for the complainants. H. E. Davies and S. A. Foot, for the defendants. The following points were made in behalf of the complain ants. I. The bill claims an equitable lien in favor of the complainant Hamilton Wilkes, upon the estate of Charles Wilkes, devised to Horatio Wilkes, and of which Horatio died seised, on account of a debt of the testator's paid, in solido, by Hamilton, and to which Horatio's share of the testator's estate is bound to contribute, and that such equitable lien is superior to the lien at law of the defendant's judgment. 1. The lands devised were liable to contribute, rateably to the Wilkes v. Harper. payment of this debt of the testator. (2 R. S. 369, 372; ; 32, 36, 48, 60, 2d ed.) 2. The payment of this debt, in solido, by one of the devisees, entitles him to be subrogated to all the rights, remedies and liens, which the creditor had before such payment, upon or against the testator's estate in the hands of the other devisees for their contributory share towards the payment of the testator's debt. (1 Story Eq. 499; Cuyler v. Ensworth, 6 Paige, 32; Eddy v. Traver, 6 Paige, 521; Schermerhorn v. Barhydt, 9 Paige, 28.) 3. The rights and liens of such creditor of the testator, and therefore of such subrogated devisee, are paramount and superior to any lien which any individual creditor of any other devisee, can obtain upon the devised estate in the possession of his debtor. (In re Howe, 1 Paige, 128; Morris v. Mowatt, 2 Paige, 586.) 3. The complainant, Hamilton Wilkes, therefore, has an equitable lien to the amount of $2200, or thereabouts, upon Horatio's estate in remainder in one-sixth of the house in Laight street, superior to the lien at law of the defendant's judgment, and the injunction was properly allowed and should be continued on this ground. II. The bill further sets forth the pendency of a suit in this court, for the establishment of a claim against the estate of Charles Wilkes, to the amount of some $9000, and that, in case of the adverse result of that suit, the assets of the testator's estate being exhausted, the real estate of the testator in the hands. of the devisees will be subject to the satisfaction of such debt. 1. The debt, when established, will be an equitable lien upon the devised estate of Charles Wilkes, of which Horatio Wilkes died seised, for its contributory share thereto, superior to the lien at law of the defendant's judgment upon the grounds above stated. 2. The complainants, the other devisees of Charles Wilkes, are entitled to have this devised estate of Horatio's reserved from execution and sale for his individual debts, until the decision of the pending suit, that in case such claim should be established against the testator's estate, Horatio's share of the devised estate may VOL. III. 2 Wilkes v. Harper. contribute thereto, and the injunction was properly granted and should be continued on this ground. III. The bill sets forth, that Horatio Wilkes was the sole act ing executor, (though others qualified,) of the estate of Charles Wilkes ; that there were abundant assets of the estate to pay all 'the debts of the same; that Horatio was guilty of a devastavit, and upon an accounting as of January 1, 1840, was found to be indebted to his father's estate in the sum of $59,112 26. 1. The co-devisees of Horatio as against him, are entitled to have the real estate which was devised to him by his father, subjected, in solido, to the payment of the debts of the estate of Charles Wilkes, before they shall be called upon to contribute, and would have an equitable lien to that effect upon Horatio's share of his father's estate in his hands, or in the hands of his heirs or devisees. 2. A judgment-creditor's lien upon the property of his debtor is always subject to every superior equitable lien upon the same, whether latent or otherwise. 3. This equitable lien is set up in the bill, and the injunction was properly granted, and should be continued upon this ground also. IV. The co-devisees of Horatio have also an equitable lien upon their testator's estate in the hands of Horatio to make good the whole sum of $59,112 26, and interest from January 1, 1840, lost to them by reason of the devastavit of Horatio, and if there were no debts of the estate of the testator to be provided for, the co-devisees of Horatio would have a better lien upon his estate derived from their testator, than any individual creditor of Horatio could have. 1. Horatio will be deemed to have taken his full share of the testator's estate in the sum which he wasted, and any devised property found in his possession after the devastavit will be treated as a residuum of the testator's estate for distribution among the other devisees. 2. This lien is set up in the bill, and the injunction was properly granted, and should be continued on this ground. The defendant's counsel made the following points. Wilkes v. Harper. I. Charles Wilkes, the testator, left no real estate undevised; and sufficient personal property to pay all his debts, and although a large amount of his real and personal property was wasted and misapplied by Horatio Wilkes, his son, and the acting executor of his will, still there was personal property unwasted by him and actually applied to the payment of the testator's debts, and distributed among his legatees, sufficient to pay all his debts. II. No creditor of the testator, nor any person, standing in the place and having the rights of a creditor, has been unable, after due proceedings in any court, to collect his debt against said testator from his personal representatives, next of kin, or legatees. III. On the facts stated in the first and second points, the complainants have no equitable claims on the real estate devised to Horatio Wilkes, and in controversy in this case, which can affect the lien of the defendants under their judgment against him. IV. The debt or demand which the complainants had against Horatio Wilkes in his lifetime, and since his death against his representatives, constitutes no equitable lien on his real estate devised to him by his father, especially to the prejudice of the lien of the defendants by virtue of their judgment. The counsel for the defendants cited 2 R. S. 369, &c., § 32 to 36, 48, 56, 59; Schermerhorn v. Barhydt, 9 Paige, 28, 29, 46, 47. THE ASSISTANT VICE-CHANCELLOR.-If the Garnett's in May, 1840, had proceeded to collect their debt against the estate of Charles Wilkes, they would not, according to the provisions of the Revised Statutes, have reached the real estate in question, in the regular course there marked out. Their proceeding was first, against the executors. That would have proved fruitless beyond the $2400. As there was no intestacy, their next remedy was against the legatees; and this would have produced the amount of the claim. Their suit against the devisees lay beyond that against the legatees, and was open to them only upon the entire or partial failure of the latter. Eddy v. Traver, (6 Paige, 521,) to which I was referred, differs from the case before me in this, that the personal estate of Eddy was insufficient to Wilkes v. Harper. pay his debts, and therefore the creditors from the first, had a right against the real estate. That right affected the whole land in the possession of the heirs at law, and having been enforced against a part which one of the heirs had aliened, the alienee was subrogated to the creditor's right against the residue of the land still held by such heir. There is no doubt of the principle advanced by the complainants, that the lien of a judgment upon the lands of the debtor, is subject to all prior equities which existed in favor of third persons against such lands, at the time of the recovery of the judgment. It is, in short, a lien upon such interest as the debtor then actually has, and is affected by the latent equities and liens of others. Herein it differs from the lien of a mortgage; for the latter in favor of one who makes an advance in good faith without notice, is upheld against all such prior equities. The mortgagee is a purchaser; the judgment creditor has a general lien upon the existing right of the debtor. The defendant's judgment in this case was recovered in January, 1837, and if they are to be affected at all by the claims set up in the bill, it must be by some equity in favor of the complainants which existed at that time. Hence those claims are to be regarded, as they would have stood in January, 1837. And it was in this point of view, that at the hearing I deemed it material to know whether the grievous devastavit of Horatio Wilkes, which has so much implicated his family, was committed before or after that period. If it were subsequent, the fact that he at that date had in his custody, funds of the estate which he might squander, and thus implicate the other legatees, constituted no equity which could attach upon the land devised to him. The equity which is to impair this judgment, must be one prior to the judgment, otherwise the legal lien of the latter will prevail. Horatio W. after such lien attached, could no more divest or postpone it by a devastavit, than he could by a mortgage or a sale. In this question of priority, no reference is had to the time of the Garnett's making their claims, or of its payment. The claim existed before the judgment, although enforced afterwards. On the principle upon which the bill is founded, the claim fur |