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514 POST v. MACKALL.
and where it Is clear, that the creditor can sustain no
loss, nor be in any way delayed, or have his claim subjected to
tee, $728 47; costs in this court and the Court of Appeals, $879 17; additional
costs; register's fees, $23 07; tax, 50 cents; depositions, $43 00; and auditor's
fees, $42 00; making $110 57; amounting altogether for commissions, costs and
expenses, to $1, 718 21. To the Farmers' Bank for their mortgage debt, $13, 739 55;
deduct losses above, $3, 045 55; then add, to be repaid by Mrs. Tilton, $176 07;
leaving due to the Bank the sum of f 10, 860 82. To James Tilton, for his life
estate in Mrs. Tilton's equity as sold, three-twelfths, $ 584 30. To the complainant
for his proper proportion of Mrs. Tilton's equity, $275 42. To ditto, for his pro-
per proportion of Edward Gibson's devise, $1, 266 06, To ditto, for proper propor-
tion of Fayette Gibson's devise, sold to Lloyd, $397 79, and to ditto, for balance of
Mrs. Tilton's equity, $525 76. Being equivalent to the before mentioned whole
amount of sales, $ 15, 637 36.
By the aforegoing account the complainant would receive out of the funds in
hand on his claim, the sum of $2, 465 03; his whole claim as recoverable amounts
to $3, 446 75; leaving still to be provided for, the sum of $981 72; of which Mrs.
Reynold's devise ought to pay |$822 96; and Mrs. Bennett's, $158 76.
Mrs. Tilton's devise sold for $ 5, 137 36; deduct proportion of mortgage debt,
$2, 804 17; proportion of costs, commissions, &c. $299 57; leaving a balance due
her of $1, 173 90. Of which she repaid to the Bank, $176 07; leaving to be repaid
to her by Reynolds and wife, $440 74; and for costs, $159 01; making $599 75;
by Bennett's heirs, $85 02; and for costs, $133 83, making $ 218 85; and by
Blake's heirs for costs, $179 23.
The following will shew the situation of the estate after the distribution of the
proceeds according to the former account Debtor—The estate to the Bank,
$1, 260 59—to complainant, $981 72—to Mrs. Tilton, $997 83; making $3, 240 14.
Credit—Due by Reynolds and wife, $2, 230 60; by Bennett's heirs, $533 47; by
Lloyd for costs, $120 77; by Blake's heirs for costs, $179 23; paid by Mrs. Tilton
to the Bank, $176 07; amounting as above to $3, 240 14.
If these views be correct the Bank would lose the sum of $1, 735 21; but as there
would have been no loss if the mortgaged property had been properly applied, the
Bank can come upon the estate only as a general creditor for this balance; either in
its own right, or by substitution; and it is conceived, that for the amount which is
claimed as a general creditor, the plea of limitations, as set up by the devisees,
would be sustained; and that the above mentioned balance would be finally lost.
In order, however, to meet the views of the Bank, in case the plea of limitations
should not be sustained, the auditor has prepared the following statements to shew
what would be the amount of contribution due from each of the devisees liable
therefor, if the claim be sustained. This will be done in reference to the plea of
limitations set up by Clam and James Tilton, and the right of Mrs. Bennett to have
the personal estate first applied; and the distribution would be made as it was for
the complainant's claim as follows; claim of the Bank as a general creditor
$1, 785 11; Mrs. Tilton would pay $180 28; Mrs. Bennett $113 61; and Reynolds
$826 80; making $1, 120 61; being a loss on Bennett's portion of 28; on
Clara Tilton's of $82 32; shewing still a loss to the Bank of $664 60.
" The auditor has not allowed any of the claims for taxes; because it does not ap-
pear that there was an insufficiency of personal property on the premises, or in the
county; without which proof, they cannot be regarded as a Men on the realty. And
if such proof were produced. It would still be necessary to shew upon what pieces
of property they accrued, in order to charge the proper parties with them.
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