494 POST v. MACKALL.—3 BLAND.

which may properly be considered as the contract between debtor
and creditor, but is founded on a natural and moral equity, that it

premises But, as the Court of Appeals, in their opinion delivered in this
cause at the December Term 1838, a copy of which is filed, say, that there
may exist a state of things in which this mortgage claim may be reduced,
certain statements are submitted in illustration of this point That part of
the opinion is as follows "If it should turn out, that the residue of that
part of Marengo, devised to Fayette Gibson, and not by him conveyed to
Edward Lloyd or John Blake, united with the other parts of Maiengo, to
which Fayette Gibson was entitled, after paying their just contribution
towards the mortgage debt, and all other debts of the deceased shall prove
inadequate to the payment of that portion of the mortgage which the part
of Marengo devised to Fayette Gibson was bound to contribute then with
reference to the other devisees, owners of Marengo, the mortgage debt of
the bank must he deemed satisfied and paid to the extent of such inade-
quacy " Statement No 1, shews the value of Jacob Gibson's real estate at
the time of his death Statement No 3, shews the value of the same, as of
the time of taking the testimony in relation thereto Statement No 3 and
5, by which it appears, in these views of the proof, there will be such a defi-
ciency as is intimated in the opinion of the Court of Appeals And state-
ment No 4, by which, in another view of the proof, there will be no such
deficiency. The proof, in relation to all these statement, is vague, and much
of it derived from papers filed in this cause without a commission, moreover,
it is applicable to different periods of time, much of it founded on estimates
merely, and omits the valuation of some real estate of which, it would seem,
the deceased died seised. These statements, 3 and 4, assume, that all the
debts filed are to be paid, whereas to the most of them the Statute of Limi-
tations has been pleaded by the devisees, and other parties, the bank among
the rest and if it apply to them, then even the deficiency appearing on the
statement No. 3 would be reduced to a small sum, if not entirely disappear

The auditor further says, that in the event of the Chancellor's being of
opinion that these statements make it doubtful if the bank can now receive
the whole of its mortgage debt, it would seem, this doubt may be removed by
the effect of the right of the bank to claim by way of substitution, m the
stead of the unpreferred creditors who have been paid off by the Orphans"
Court accounts, as is recognized by the opinion of the Court of Appeals
For, as the personal estate of Jacob Gibson, deceased, which would if prop-
erly administered, have paid to all the unpref erred creditors thereof $0 61106
in the dollar, as per account A, has been illegally administered, with the
approbation of the devisees of the testator, whereby the creditors, the bank
among the rest, have lost this dividend, they are entitled to claim the same
now, by way of substitution to the rights of these creditors so paid off, so
that the bank for its claim No 6, $13,739 55, should be entitled to $8,395.89,
as against all the devisees and according to statement No 1, to upwards of
$3,000 and according to statement No 3, about $4,000. as against these pro-
ceeds of sale, either sum exceeding the deficiency estimated by statement
No 3 and 5

It is therefore submitted, that in this view of the case, the bank has a
claim against the mortgaged estate sold, by way of substitution to the rights
of the creditors paid off out of the personal estate, to a much larger sum
than can be the deficiency of its contnbution by reason of the release to
Lloyd and, therefore, none of the parties to these proceedings are injured
by the payment to the bank of its entire claim out of these proceeds. Again,