
    W. A. Moore vs. Ann E. Wright and others.
    
      Injunction.
    
    W. recovered judgment against B. in October, 1861, and A fa. thereon was levied on a tract of land. B. died intestate in March, 1862, and under proceedings in equity for partition, between his heirs — the administrators of B. being parties and admitting pcr.sonal assets sufficient to pay his debts — the tract of land was sold by the Commissioner and purchased by M. who paid the purchase-money and took a conveyance from the Commissioner. On bill filed in 1861, by M. against W. and the administrators of B.; Held, that M. was not entitled to an injunction to restrain W., whose debt remained unsatisfied, from enforcing her execution by a sale of the tract of land.
    BEFORE CARROLL, CH., AT CHAMBERS, JUNE, 1867.
    This was a motion at Chambers, to dissolve an injunction which had been granted by the Commissioner in February, 1867.
    In October, 1861, Ann E. Wrigbt, one of the defendant’s, recovered a judgment in the Court of Common Pleas for York district, against William Berry, for $1,061.88 and costs, and fi. fa. was issued on tbe judgment and levied by tbe sheriff) on a tract of one hundred and eigbty-eight acres of land. In March, 1862, Berry died intestate, and Bobert A. Black and Thomas L. Berry administered on bis estate. In April, 1863, a bill for partition was filed by some of Berry’s heirs against others of his heirs — sixteen in all— and also against his administrators, who admitted personal assets'in their bands sufficient to satisfy tbe debts of their intestate. In June, 1863, an order for sale was made by tbe Court for so much cash as would pay tbe costs and the residue on a credit of one and two years. The sale was made in September, 1863, and William A. Moore became the purchaser of the tract above mentioned at the price of $5,828. With the consent of the heirs, he paid to the Commissioner the whole of the purchase-money in cash and took from the Commissioner a conveyance of the land.
    Some payments were made on the execution of Ann E. Wright, leaving a balance of about $1,200, and she being about to enforce her execution by a sale of the land, this bill for an injunction to restrain the sale was filed in February, 1867, by William A. Moore against Ann E. Wright and the administrators of William Berry. The bill also prayed that the administrators be decreed to account; that the defendant Ann E. Wright be compelled to resort to the personal estate for payment of her debt, and in case of a sale of the land, that the plaintiff be surrogated to the rights of Ann E. Wright under her judgment, and for further relief.
    Other facts stated in the pleadings and the grounds upon which the motion to dissolve the injunction was made and resisted, will be found in the opinion of his Honor the Chancellor, which is as follows:
    Carroll, Ch. The motion submitted proposes to dissolve the injunction granted by the Commissioner. It has not been contended that his sale under the decree for partition, divested or in any wise impaired the lien of the judgment in favor of the defendant Mrs. Wright. But conceding the continuance of such lien, the bill submits that to permit its enforcement against the land purchased by the complainant, would be inequitable and oppressive. It is charged in the bill, that Mrs. Wright stood by and interposed no objection to the partition of the land. She was no party to the proceedings and denies having in any way assented to the sale. Surely she was under no obligation to be present at the Commissioner’s sale, and to give notice of her judgment. The very existence of the judgment, a debt by record, implied notice. Filis vs. Woods, 9 Rich. Eq. 2. In tbe suit for partition of the lands of their intestate, the administrators of William Berry, admitted that the personalty in their hands was sufficient for the payment of the debts. It is urged, that Mrs. Wright stands in the position of a creditor, with several funds for satisfying the debt; that she may have recourse to the personalty in the hands of the administrators, or to the proceeds of the sale of the land by the Commissioner, and that she should be required to exhaust her remedies in that behalf before proceeding to sell under her judgment the land purchased and paid for by .the complainant. In adjusting priorities and marshalling securities, the usual course is not to restrain the preferred creditor in the first instance, but to compel .him to place his remedies at the disposition of the other claimant, after they have served the purpose of satisfying his own debt. It seems only just to require that those who insist on the sufficiency of remedy as a means of payment, .should be obliged to take the risk and delay of enforcing it on themselves. Aldrich vs. Cooper, (Am. notes.) 2 Lead. Cas. in Eq. 276. In general to warrant any further or more direct interference with the rights of the creditor, there must be on his part a case savoring of oppression, or at least of manifest disregard of the just claims of others. The senior creditor, it is said, “is not bound to 'resort to a dubious fund, or one which may involve him in litigation, when there is unencumbered property — notwithstanding that the claims of a junior creditor may be defeated thereby.” Fowler vs. Barksdale, Harper’s, Eq. 165. It appears to be a necessary condition of the Court’s interposition, that the remedy to which it is proposed the more favored creditor shall resort, must be shown to be as certain, prompt and efficient as that which he is required to forego. -Were it otherwise then the multiplication of securities instead of promoting or accelerating the payment of the debt, would’ but serve to embarrass or retard. Goodwyn vs. The State Bank, 4 Des. 398. Even a surety cannot compel the creditor to ■resort to a collateral security in the first instance, unless such security be as available in all respects, as a proceeding against the surety. Adam’s Eq. 268, n. e. At the least, the fund to wbicb the preferred creditor is required to resort, must be shown to be adequate for the payment of his debt. It must be pointed out in tbe bill and its existence proved. Felder vs. Murphy, 2 Ricb. Eq. 58; Gadberry vs. McLure, 4 Strob. Eq. 178. Has the plaintiff made proof of tbe sufficiency of the funds to which be seeks to refer Mrs. Wright ? Her judgment is for $1,064.88, and is recorded as far back as October, 1861. The personalty in the hands of the administrators, consists of moneys or securities for moneys, which came to their bands in tbe year 1862 and 1863, and according to their return exhibited with the bill, they were indebted to' their intestate’s éstate, on tbe 29th October, 1864, $1,584.29. If tbe whole of this balance were represented by notes or bonds, against persons yet, solvent amid tbe general ruin, still if Is to be inferred that,, by tbe ordinance of September, 29th 1865, a considerable abatement must be made from the.sums recoverable on those securities. Tbe bill seeks from tbe administrators an account of their administration; In response they answer, that their admission of the sufficiency of the personal assets to pay tbe debts was a gross mistake. That since that date other debts against their intestate, of wbioh they were wholly ignorant, have been presented. That the payments made by them on. account of their intestate’s debt's, since their return in October, 1864, exceed $i,700. That the only assets in tbeir hands to be administered, consists of notes for articles of their intestate’s personal property, amounting to about $600, only a portion of which will probably be realized, and that it will require their intestate’s whole estate, real and personal, to pay his debts. They deny the sufficiency of personal assets now inthe hands of the administrators to pay the judgment debt of Mrs. Wright, and beyond what remains of those assets in their custody they deny their accountability. It is averred in tbe bill that the price of the land purchased from the Commissioner was paid in cash by the plaintiff in September, 1863. It is not proved or even suggested that the money remains in tbe hands of tbe Commissioner. The natural inference is that it has long since been distributed among the heirs, and such inference bas been confirmed by the statement in tbe bill, “ that tbe money came to be then promptly paid because of the said heirs being then ready and willing to receive the whole amount of tbe purchase-money in cash, and tbe complainant being then ready and willing to pay tbe same.” To say nothing of the character of the currency in which suclr payment was probably made, it is sufficient to observe that tire statutory heirs of William Berry are about sixteen in number ; of tbeir places of residence and pecuniary means respectively, tbe Court is wholly uninformed. If the security held by Mrs. Wright Avere equitable only, or if sbe was seeking its active aid, tbe Court might, perhaps, more readily iuterfere, but sbe is a party defendant and asks only not to be molested in the assertion of her legal rights. To deprive her of tbe prompt and efficient means of compelling payment by a sale of the land, and to constrain her to resort to either of the remedies suggested, with its attendant litigation, uncertainty, expense and delay, in order that others may be relieved from the consequences of tbeir own errors and mistakes, seems not to be warranted by principle or precedent. Other topics were discussed in the argument, but' comment upon them is not deemed necessary. It is ordered and adjudged, that the injunction granted by the Commissioner against tbe defendant, Ann E. Wright, be dissolved.
    
      The complainant appealed on the following grounds:
    1. Because on the case made by the pleadings and proofs, the complainant was entitled to the injunction prayed for.
    2. Because the injunction granted by the Commissioner and dissolved by the order of the Chancellor, should have continued until the hearing of the case upon its equities.
    3. Because the Chancellor is wholly mistaken in the assumption, that the assets in the hands of the adminis-» trators of William Berry were not sufficient, in a due course of administration, to satisfy the execution in favor of Ann E. AYright, levied on complainant’s land.
    
      Williams, for the motion.
    
      Wilson and Witherspoon, contra.
   The opinion of the Court was delivered by

Inglis, A. J.

The Chancellor, in his judgment, very satisfactorily demonstrates that, in the facts which constitute this case and under the principles of law applicable to them, the plaintiff has no equity whatever to restrain the defendant, Ann E. Wright, from proceeding by a sale of the intestate’s land under execution, to complete the satisfaction of her judgment, which had been commenced by the levy in his lifetime. At his death this land descended upon his statutory heirs, subject, not only to a general liability, as assets under the statute, for all his debts, but especially to the then subsisting lien or incumbrance of the defendant’s judgment. The plaintiff who purchased (what alone the Court could sell) the estate of those heirs, of course took it cum onere, and with full notice thereof. It would be most inequitable to turn the defendant, Ann E. Wright, round, from the prompt and effective remedy of her execution, to the delay, expense, and embarrassment, incident to a pursuit of the personal assets in the hands of the administrators, or of the personal responsibility of such administrators and the sureties on their bond.

The propriety of the order dissolving the injunction, which had been granted by the Commissioner, is abundantly vindicated by the reasoning of the decree and the authorities therein cited; and this Court does not feel it necessary to add anything thereto. It need scarcely be added, that the plaintiff may, in his present suit, still pursue his equities against the personal representatives of the intestate William Berry.

The circuit order is affirmed and the appeal dismissed.

Dunkin, C. J., and Wardlaw, A. J., concurred.

Appeal dismissed.  