*

244 ELLICOTT v. WELCH.

3d June, 1828.—BLAND, Chancellor.—The petition of Warner
Welch and Rachel his wife having been submitted without argu-
ment, the proceedings were read and considered.

The object of the bill is to have the land sold for the payment of
the purchase money due to the plaintiff; his claim therefore carries
with it an equitable lien upon the land sold, which entitles him to
a preference in satisfaction from the proceeds of the sale over all
others; and consequently, the petitioner Rachel, according to the
act of assembly, (a) can only be endowed of the equitable interest
of her late husband, without prejudice to the plaintiff's claim; that
is, of the surplus which may remain after that claim has been satis-
fied, But as it does not appear what is the amount of the surplus,
if any;

It is therefore Ordered, that this case be and the same is hereby
referred to the auditor with directions to state an account accord-
ingly, allowing to the said Rachel out of such surplus, if any, two-
thirteenths for and in lieu of her dower in the equitable interest
held by her late husband in the lands in the proceedings men-
tioned. _________

After which, on the 29th of June, 1829, the auditor reported a
statement distributing the proceeds, first in payment of the costs,
commissions and expenses, next in satisfaction of the plaintiff's
claim in full; and then the balance or surplus among the widow
and heirs of the deceased. But the auditor suggested, that no
notice appeared to have been given to the creditors of the deceased
to exhibit their claims against the estate, as there should have been
before any part of the balance was paid over to the heirs.

6th July, 1829.—BLAND, Chancellor.—This case having been
submitted on the auditor's report without argument, the proceed-
ings were read and considered*

The plaintiff founds his claim to relief on an equitable, or vendor's
lien upon the real estate designated in the proceedings. He is
here, in effect, as a mortgagee seeking relief against a mortgagor;
but as a mortgagee, or the holder of an equitable lien has no com-
mon interest with the general creditors of the debtor, he cannot in
his and on their behalf institute a creditors' suit, (b) Although
this bill alleges, ' that the personal estate of the intestate will
be greatly insufficient to pay his debts;' yet the plaintiff does

(a) 1818, ch. 193, s. 10.—(b) Burney v. Morgan, 1 Cond. Chan. Rep. 188.