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COOMBS v. JORDAN. 297
brought before the court. But, admitting, that he had not by his
petition to have the proceeds paid to him submitted to be treated
as a party, as a co-obligor who is insolvent need not be made a
party; Key, who was alleged and shewn to be so, was not a
necessary party; since no decree against him could be of any
avail; and his answer, as such, could not be read against any
other party. Consequently, all further proceedings against him
being useless, the case as to him also was thus brought to a final
close.
But Stone & Me Williams, by their petition, stated that they
were judgment creditors of Jeremiah Booth, deceased, who had
died without leaving personal estate sufficient to pay his debts; or
any other real estate than that which had been sold under the de-
cree in this case, leaving a large surplus of the proceeds of sale
still undisposed of; and that his administrator John Llewellin, was
dead, leaving a widow Mary, who was the daughter and only heir
of Booth. This new cause of complaint, thus ingrafted by this
petition upon the remaining stock of this case, gave to it an en-
tirely new character, and converted it into a creditor's suit against
the heir of Jeremiah Booth, deceased.
As regards the claim of Stone & McWilliams, as here presented
in conflict with that of the heirs of Richard Jordan, deceased, there
can be no occasion, at present, to notice the heir of Booth; and
the case, as to her, may, so far as regards the question now to be
determined, be considered as finally closed; since it has been
thus, in fact, reduced to a mere contest between these two rival
creditors of Jeremiah Booth, deceased, arising out of their respec-
tive claims to a preference of satisfaction out of the surplus of the
proceeds of the sale of his real estate.
It has been urged, that Jeremiah Booth had at no time, during
his life, any thing more than a mere imperfect right or equitable
interest in the real estate from the sale of which this surplus has
arisen; and that his estate was not one upon which the judgment
of Stone & McWilliams could give them a lien.
This objection points to a portion of our law of a most impor-
tant bearing, and of frequent application; and yet is one which
has not, that I know of, been any where carefully examined and
considered. I shall, therefore, avail myself of this occasion to
take a more comprehensive view of the subject than might other-
wise have been deemed necessary for the determination of this
case,
38 v. 3
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