230 ELLICOTT v. WELCH.—2 BLAND.

After which, on the 29th of June, 1829, the auditor reported a
statement distributing the proceeds, first in payment oi' 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.

BLAND, C., 6th July, 1829.—This case having been submitted,
on the auditor's report without argument, the proceedings 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 lieu has no com-
mon interest with the general creditors of the debtor, he cannot in
his and on their behalf institute a creditors' suit. Burney v. Mor-
gan. 1 Cond. Chan. Rep. 183. Although this bill alleges, ''that the
personal estate of the intestate will be greatly insufficient to pay
his debts; " yet the plaintiff does * not claim as one having
245 a common interest with the other creditors of Nicholas
Welch, deceased; or as one who was only entitled to obtain im-
mediate satisfaction here out of his real estate in the hands of
his infant heirs, upon the ground that his personal estate was
insufficient or had been exhausted. There is, therefore, nothing
in the pleadings, as they stand, which shews this to be a creditor's
bill under which all the other creditors of the deceased should be
notified to bring in their claims.

It is true, that this might have been converted into a creditor's
suit; and that this surplus distributed among these heirs, exclusive
of the widow's share, might, before it was paid over to them, have
been thus intercepted for the benefit of the general creditors of the
deceased. But that could only have been done at the instance and
on the petition of a creditor having a common interest with others,
and on the ground of the insufficiency of the personal estate of the
deceased; Latimer v. Hanson, 1 Bland, 51; Fenwick v. Laughlin, 1
Bland, 474; or on the application of one, who, from the peril in which
he stood, had a right to be substituted for, ami to be considered,
as such a creditor. As where an executor or administrator, who
had paid away all the personal assets, was actually sued, and
against whom judgment was likely soon to be recovered by a cred-
itor of the deceased, petitioned to have the surplus applied to the
satisfaction of such claims to which he was in danger of being made
liable; O'B'rien v. Bennet, 1 Bland, 86, note; or where a judgment
had been obtained against the surety in a bond, such surety,
before he had paid any part of the debt was allowed to sustain a