Otty v. Ferguson

Tod, J. I talcé the decision to he right. Very pernicious would • he a rule requiring each of nine legatees, as in this case, to bring, a separate action; and, though there might have been no dispute in the matter, and it was the interest of all to have a judicial salé of the land, yet to compel them to load the estate with the costs of nin,e actions [295] instead of one. The chancery practice requires no such thing, nor does our law in analogqus cases. Where a fund is legally appropriated for the satisfaction of divers co-existing fixed claims, the general rule is, that no advantage is acquired, either as-to principal or interest, by priority of suit. To obtain a judgment against the estate of a person deceased, gives no preference. Nor does a levy on land.. Wootering v. Stewart’s Executors, 2 Yeates, 483. Prevost v. Nicholls, 4 Yeates, 479. Scott v. Ramsay, 1 Binn. 221. In Dowley and Thomas v. Hays, decided by this court at Sunbury,- and not yet reported, it was held, that in case of a mortgage given-to secure , the payment of sundry bonds, and those bonds assigned to different holders, priority of suit or of judgment secures no advantage as against the mortgaged property. As to the rule in equity for equal payment in these cases, see 2 Har. Ch. 99. 3 Atk. 551. 1 Ves. 215. 2 P. Wms. 50. 2 Johns. Rep. 576. 1 Hen. & Mumf. 11. It is the opinion of the court that the judgment be affirmed. Judgment affirmed.