
    William Greenwood against The Executors of Peter Bocquet.
    Charleston Dictrict,
    
    
      1797.
    
    Where lands have been mortgaged hy a testator in liis life-time, and there are judgments against him, some before and others after the mortgage, any moneys in the sheriff’s hands arising from sales of his
    personal property, sliall be appropriated in the first place to the satisfaction of the elder judgements, so as to leave the mortgaged premises, unincumbered, to go towards satisfaction of tli£-mortgage money.
    UPON a rule on the sheriff of Charleston district, to shew cause, why moneys in his hands should not be paid over to sundry prior judgment creditors, according to their seniority.
    The case was briefly as follows. Greenwood had a mortgage on a valuable house and lot in Charleston, from the deceased, in order to secure a large sum of money he owed him ; but there were several judgments prior to this mortgage, entered up against the deceased, in his life-time, which bound his landed property, and which were unsatisfied at the time when this mortgage was given to Greenwood. After the date of this mortgage, sundry other creditors pressed the deceased for money, and obtained judgments against him in like manner; soon after which Bocquct departed this life, leaving all these judgments, as well as the morfgage, unsettled.
    The prior judgment creditors being perfectly secure, were not very pressing for their money; but some of the later judgment creditors, fearing there might be a deficiency, pressed executions against the estate after the testator’s death ; in consequence of which, a number of negroes belonging to the estate were sold to a considerable amount, fully sufficient, if not more, than was competent to pay off all the prior judgment creditors, and to leave a small surplus towards some of the junior ones. In this situation the junior creditors had ruled the sheriff to pay over what moneys he had in his hands, arising from the sales of the negroes and other personal estate of the deceased, towards the discharge of their younger judgments. Greenwood being apprized of the intention of these later creditors, to get the moneys arising from the sales of the personal estate into their hands, which would leave the mortgaged premises liable to the payment of the elder judgments, and probably defeat him ultimately of the benefit of his mortgage, applied for and obtained á rule on the sheriff, to shew cause, why he did not apply the moneys in his hands towards the pat ment of the elder judgments, according to their seniority, which would leave the mortgaged premises free from prior incumbrances, and liable only to the lien of his mortgage ; so that all these rules on the sheriff came before the court at the same time, to determine how the moneys should be marshalled, and paid among the different creditors agreeably to law.
    This cause was argued by Mr. E. Rutledge, in favour of the present applicant, Mr. Greenwood,, and by Mr. Fordy on the part of the younger creditors.
    
      For the plaintiff it was argued, that the sheriff was bound by law, whenever he had moneys in his hands arising from sales made by virtue of executions, to pay off the eldest judgments and executions first. That he was bound at his peril to take notice of prior judgments on record first, and pay them off in rotation, beginning at the eldest, and so on, agreeable to their dates, and if he did not an action would lie against him. That it would be an abuse of the process of the court, to suffer the sheriff to appropriate the moneys •in his hands arising from the sales-of the personal estates of the deceased, towards the payment of younger executions, while there were elder ones, or prior judgments unsatisfied ; and then to go on, and sell the real estate, to the prejudice of a bona Jide mortgage creditor, to pay off those elder judgments; that the younger judgments were inferior in degree to the prior mortgage, and ought not upon any principle to have a preference to the mortgage ; whereas, by this kind of management contemplated by the younger creditors, it would really have this effect, which he hoped the court would prevent.
    On behalf of the younger creditors, it was said, that they were not to know whether the elder judgments were paid or unsatisfied ; they had been laying over for many years, and for aught that appears in the office of the sheriff, they may have been paid off, though no satisfaction appears upon record. It was alleged that they had not been negligent, but had used all due diligence ; they had lodged executions in the hands of the sheriff, and by virtue of them the negroes had been sold, and they were regular in calling upon the sheriff for the moneys in his hands, arising from the sales under their own executions. That they had nothing to do with Mr. Greenwood, or his mortgage, and considered his interference as officious, and calculated to impede and delay them in the recovery of their just and legal claims. That he had no right or authority to • call upon the sheriff by rule of court, as he was not in court by record ; and still less had a right to rule the sheriff to pay moneys over to partiggy tvho had not claimed it themselves, and who wei'e in court on record, and competent to apply.
    gee cas£ v‘ JceP-, /¿¿fey* «lit. Snipes and ^le,'ibid. ¶. 295‘
   Per Curium.

There can be no doubt, but that the sheriff is bound to pay off all judgments on record first, agreeable to their seniority ; and it had been so ruled in this court, over and over again; and it was very immaterial from what source the money arose, that came into the defendants’ hands ; whether from the sale of real, or personal estate. That in the present instance, if this general rule was departed from, it might have the effect in case of an eventual deficiency of assets, of cutting off the plaintiff, Mr. Green-zvood, from the benefit of his mortgage entirely, or driving him into equity, for relief; for if the moneys in the sheriff’s hands, were ordered to be paid over to the younger creditors, as contended for, it might happen that nothing else would be left, but the mortgaged premises, to pay off and satisfy the elder judgment creditors, which would certainly be very unjust, as the mortgage had a preference to all the younger judgments. To avoid, therefore, any injustice or delay to any of the parties, and to preserve all their just rights unimpaired, the court was unanimously of opinion, that the moneys in the sheriff’s hands, should in the first place be paid over to the prior judgment creditors, or deposited in court for their use, and the balance, if any af-terwards, be applied to the junior creditors. This would leave all the parties in the true situation where á court of equity would place them, if either of them had been forced into that court for relief.

Present, BuRKE, Gkimke, and Bay.  