386 HAMMOND v. HAMMOND,

make the creditors contribute in due proportion to the expense of
the suit; (e) next in the payment of the public dues, taxes and
levies; then in discharge of each mortgage, equitable lien,(f) and
judgment according to its respective priority; recollecting, that the
lien and priority of a mortgage is confined to the principal sum
particularly mentioned and expressed, to be secured thereby; (g)
and after that in payment of the creditors in due proportion; to the
satisfaction of all which the real estate has been made alike liable,
by statute, without preference, (h)

No man can be compelled to institute a suit for the recovery or
establishment of his rights; because, as to the disposition of his
own peculiar rights and property, his will stands for a law. But
no one can be permitted either to use, or to neglect to use, his
rights to the prejudice of others. Hence, if a prior mortgagee
attempts to use his incumbrance as a protection of the property
of his debtor, it will be deemed a fraud upon the other creditors;
and his lien will be postponed until the injured and junior incum-
brances have been satisfied. And so, too, where a creditor has a
lien upon a particular fund, which has been previously mortgaged
or incumbered, he may come here and redeem the property from
such prior incumbrance, so as not to permit him to neglect to
establish and receive his debt to the prejudice of others, who
have an interest in the proper application of the surplus, (i) The
personal estate of a deceased debtor must be first applied in pay-
ment of his debts, and then distributed among his next of kin or
legatees; and where his personal estate is insufficient to pay his
debts, a right accrues to all his general creditors to have his real
assets administered in equity for their benefit, because of their
having a lien upon them, as against his heirs and devisees, arising
from the statute which subjects real estate to the payment of debts,
(j) which they have no other way of making available than in a
court of equity. (k) And, therefore, a next of kin, legatee, heir,
or devisee, having an interest therein, has a right to redeem any
outstanding incumbrance upon those assets; or, in other words, to
bring all who have a prior, or equal claim, upon them here as par-
ties, to have their rights adjusted and satisfied, so as to clear the

(e) Loomes v. Stotherd, 1 Cond. Cha. Rep. 236; White v. Peterborough, 4 Cond.
Cha. Rep. 185; Dorsey v. Hammond, 1 Bland, 468.—(f) White v. Casanave, 1
H. & J. 166.—(g) 1825, ch. 50.— (h) 7 Geo. 2, C. 7.—(i) Powel Mortg. 281, 610.—
(j) Martin v. Martin, 1 Ves. 214; Chalmer v. Bradley, 1 Jac. & Wal. 59.—(k) Hind-
man v. Clayton, ante 337.