Gibson v. McCormick , 10 G. & J. 65 ( 1838 )

Dorsey, Judge,

delivered the opinion of the court.

An objection was taken in the course of the argument in this case, to the form of the complainant’s bill; and inasmuch as it does not provide for the coming in of the other creditors of Jacob'Gibson, and participating in the burdens and benefits of the suit, that it is not to be regarded in the nature of a- creditor’s' bill, under the act of assembly of 1785, ch. 72. .'

But this objection, we think, cannot be sustained; such a bill is not of unfrequent occurrence in the records of the equity courts of Maryland, in which it has always been treated as a creditor’s bill, in the decree founded upon it, and all the proceedings thereunder. It has no equity, nothing to support it; but the act of assembly referred to, which prescribes no particular form of such a bill, and authorizes upon application of any creditor, the sale of the real estate in whole or in part, for the payment of the debts of a deceased debtor, whose personal estate is insufficient for the payment thereof. As far as concerns this objection, the decree of the Chancellor pursues the usual form adopted on a creditor’s bill.

The decree was also objected to, because,it awarded a sale of the lands mortgaged to the Farmers’ Bank of Maryland, for the payment of the mortgage, as well as for the payment of the debts of all other creditors of the deceased, the Farmers’ Bank being made a defendant, not a complainant in the bill.

In this objection we see no weight. A decree between co-defendants, grounded upon the pleadings between the complainants and defendants, may be made, and it is the constant practice of the courts so to do, to prevent multiplicity of suits. But such decree between co-defendants, to be binding upon them, must be founded upon, and connected with, the subject mailer in litigation between the complainant and one or more of the defendants. For this doctrine see Elliott vs. Pell, 1 Paige, 263, and Chamley vs. Lord Dunsaney and others, 2 Sch. and Lef. 710, 718. The power of the Chancery court to pass that part of the decree which has been excepted to, is conclusively established by the authorities referred to, the justice and expediency of so doing cannot be denied; the assent of the mortgagee had been given, the mortgage had been long forfeited, a sale of the equity of redemption could not be resisted; then why sell the equity of redemption, subject to the outstanding mortgage, to the manifest injury of the creditors of the deceased, and the parties to this suit, and to the multiplication of litigation, by sending the purchaser, before he could realize the benefits of his purchase, into a court of equity with his bill to redeem ? Consistently with the established principles of courts of equity, the Chancellor, in the matter complained of, has done nothing but what.it was his duty to do.

The next exception taken to the decree is, that it has given no time to the devisees of the mortgaged premises, or those holding under them, for the payment of the mortgage debt, as directed by the-3d sec. of the act of 1785, ch. 72. This section of the act of assembly has no reference to a decree made under the circumstances of that now under consideration. By the terms of the enactment, it embraces only applications to the Chancellor to foreclose mortgages, filed by mortgagees, or their representatives. Here there is no such party complainant before the court. The bill is filed by a general creditor of the mortgagor, seeking for the payment of his debt by a sale of the mortgagor’s real estate, and the mortgaged premises among the rest. Such a creditor is not to be delayed in the remedy he seeks, by giving time to the mortgagor, or those claiming under him, to pay off the incumbrance. There is no reason or object in granting such an indulgence in a case like the present. The design of the legislature, in the enactment alluded to, was to give to the debtor an opportunity of superseding the necessity for the sale of his mortgaged estate. Would giving-time, and payment of the mortgage, remove the necessity for such sale in the case before us ? Certainly not. The sale must still be decreed for the payment of the general creditors of the deceased. So far as a sale of the mortgage premises is decreed for the payment of the mortgage debt, it is a mere incidental consequence to the decree, on the general creditors’ bill, resulting from the established principles of courts of equity.

There is nothing in the objection taken to the bill, that it does not allege the insufficiency of the personal assets to pay the debts of the deceased. That allegation, though not made in the very terms of the law, is substantially made in the bill before us, which charges the continued existence of the complainant’s claim, the exhaustion of the personal estate, and exhibits an account settled by the executor before the Orphans eourt, shewing the application of the whole personal fund to the discharge of the debts of the deceased; and that some of those debts were paid off but in part. If this be not a sufficient statement of a fact required by the law to give Jurisdiction to the court of Chancery, it is difficult to conceive any thing that would be, short of the use of the identical words contained in the act of assembly. A particularity like this never has been required either at law or in equity.

Another ground insisted on for the reversal of this decree, is that an account preliminary thereto, should have been taken of the disposition of the personal estate by the executor, and of the debts of the deceased remaining unpaid ; and in support of this ground but one authority has been referred to, viz. that of Callis and Semmes vs. Ridout and Ringgold, 7 Gill and John. 1. But this case establishes no such rule or practice, and rests solely on the express provisions of the act of 1822, ch. 65, under which the commissioners who made sale of part of Barnaby Manor for the payment of debts, were required in the first place to give notice by advertisement, in newspapers in the state of Maryland and District of Columbia, to the creditors to exhibit to the commissioners their claims, supported by legal evidence, on or before the first day of June next thereafter, and immediately after the said first day of June, to proceed to sell such part of Barnaby Manor as may be sufficient to discharge the debts which shall have been proved to the satisfaction of the said commissioners, The decision in this case was made, not under any rule or practice of the court of Chancery, but in conformity to the peculiar provisions of this particular act of assembly. The practice under the act of 1785, ch. 72, has always been the reverse of that now contended for; and great injustice would be done to creditors by its change. If no sale of the fund provided by law for the payment of debts, is to be decreed, no creditor to be paid until all litigation as to claims against the deceased shall have terminated, the rights of creditors will be in a more deplorable condition than any wise system of legislation ever designed to place them. The exercise of that conservative power exerted by courts of equity in selling for the benefit of those concerned, property in litigation, and preserving its fruits for those who may. shew themselves entitled, would be arrested; heirs and devisees, that they might continue in the possession and enjoyment of the real estate of their ancestor,'liable to the payment of his debts, would be tempted to engage in and protract litigation with his creditors to an almost interminable duration, to the ruin and injury of-, creditors, and destruction of the property assigned by the law for the payment of claims. Permit the Chancery court to interpose, in the usual mode, its protecting power; take possession of the property,' and convert it into the appropriate medium for distribution, and creditors are subjected to no such delays and oppression. All parties will be interested in avoiding .useless controversies. To such an objection, at such a time,- and under the present circumstances, this court should listen with a most reluctant ear. With the account of the administration of the personal estate, as rendered by the executor, the complainant was satisfied. It contained all he wished to discover; he sought no relief as against the executor; he therefore required no further account from him. Did any of the defendants, in their answers, call for such an account ? No. Did either complainant or defendants ask of the Chancellor a statement-of the claims against the deceased, as preliminary to a decree ? Neither. With what kind of grace then,- do they stand before this tribunal, seeking a reversal of the decree, because it was not ordered in the court below; even conceding that such an application, if applied ,for, would there have been granted. No account having been prayed for by any of the parties in the court below, it cannot be relied on in the appellate court as a ground for the reversal of the- decree, say the house of lords in Chamley vs. Lord Dunsaney, 2 Sch. and Lef. 712.

• It has also been insisted that the decree is erroneous, in not decreeing payment of the debts of the deceased, by a just contribution imposed upon the property of each devisee. Such a decree, it is manifest, it was not in the power of the Chancellor to have made, as no statement of the claims against the deceased had been made, or adjudicated on, by the court; without which, a decree of payment byway of contribution was wholly impracticable. But if such statement had been made, and confirmed by the court, it would have been error in the Chancellor to have passed such a decree. That even as to the bank claim, a decree for its payment by contribution by the several devisees of Marengo, would not have been authorized. See 1 Pow. mortgage, 339, note (3), and Hughes vs. Edwards, 8 Wheat. 501. A fortiori would such a decree be unwarranted, in respect to the claims of creditors; the reasons against it in the latter case being far more numerous and controlling, than in the former. In fact the decree for contribution is not a decree affecting the rights of the complainant, or passed between him and the defendants, but is an adjudication between the defendants themselves, settling their rights and liabilities, in respect to each other, and is made after the claims against them, of the complainant and all other creditors of the deceased have been definitively adjusted.

In authorizing the sale of that part of Marengo, conveyed by Fayette Gibson to Edward Lloyd, it is insisted, that the decree is erroneous upon several grounds. 1st. It is urged that Edward Lloyd, having in his answers set up the defence of his being a bona fide purchaser for valuable consideration, without notice either of the claim of the complainant, or that the personal estate of the deceased was insufficient for the payment of his debts, is protected as such against all claims of the complainant, as a general creditor of the deceased.

On the existence of such protection, abstractedly considered, we mean to express no opinion, but to its existence in the circumstances under which it is here claimed, we cannot yield our assent. It is apparent from the answer of Lloyd, and his conveyance from Fayette Gibson, that at the time of the conveyance he knew that Fayette Gibson acquired title to the land conveyed, as devisee of his deceased father, Jacob Gibson; and whether such fact was actually known to him or not, is immaterial, the law imputes such knowledge as necessarily acquired in the examination of the title to the property conveyed to him, and also imputes to him the knowledge of the provisions of the act 1785, ch. 72, sec. 5, which made Jacob Gibson’s real estate chargeable with the payment of his debts in thé event of his personal estate proving insufficient therefor; Possessing this knowledge, he was put upon the inquiry; it was his duty to have ascertained whether the personal estate was sufficient for the payment of the debts of the deceased. Had he have used reasonable diligence in the .'examination of this fact, he would have found that when he received the conveyance from Fayette Gibson, the executor had passed no account shewing the payment of the debts, that there was then pending in Talbot county court, against the executors of Jacob Gibson, a suit for the recovery of the very debt which the complainant seeks to recover by his present bill, indeed it is manifest from the answer of Lloyd himself, that he knew the debts of the deceased had not been all paid out of the personalty. He states that the whole purchase money for the land conveyed to him was applied towards the payment of three enumerated debts of Jacob Gibson, and this'application was made not by the'executors, but by one of the devisees, who had sold a part of the property devised to him. It may be suggested that perhaps • this payment of the deceased’s debts was on account of the mortgage debt due by Fayette Gibson to Edward R. Gibson, the executor, as shewn by exhibit No. 8. But such an intimation is not warranted by the'facts in proof before us, not only because no part, of the mortgage debt was payable until" more than twelve months afterwards, but because the debt to .secure which th‘e. mortgage was executed, had no existence, until several months after the payments made out of the purchase money of the land conveyed to Lloyd. It is an evidence of singular neglect on the part of a purchaser that he should receive a conveyance for lands from a devisee, the value of the title to which in a great measure depended on the sufficiency of the personal assets for the payment of the testator’s debts j that he should by arrangement between himself-and the devisee, who was not the executor, apply the whole purchase money of the land conveyed to him, to the payment of three of those debts, one of which had continued due to himself between three and four years since the testator’s death, and before its payment by the purchase aforesaid, and yet under all these circumstances, and during that period, he had no reason to suspect nor doés it appear that he ever inquired into the sufficiency of the personal estate for the payment of debts.

The second ground assigned as error in the decree authorizing the sale of Edward Lloyd’s part of Marengo, is that the whole purchase money therefor having been applied to the payment of Jacob Gibson’s debts, the purchaser should be protected in his title. The answer to this is, that the facts sated in Lloyd’s answer were traversed, and that no proof whatever has been offered to sustain them; that if full proof thereof has been offered, no devisee or person claiming under him, has the power of depriving the creditors of the benefit of obtaining the highest price which the property devised will produce, when offered at public sale under the proper authority. By making a private sale thereof, and applying the proceeds in payment of the debts of particular creditors, such a state of things should have its influence with the trustee in selecting the particular parts of Jacob Gibson’s real estate, which it might be found necessary to sell; but does not divest the Chancellor of the power of decreeing the sale which possibly may be necessary for the payment of debts. The exercise of the discretion by the decree vested in the trustee a.s to the quantum and selection of the particular parts of the real estate to be sold, is always subject to the control of the sound discretion of the Chancellor, whenever its exertion is properly invoked.

Upon the principle of substitution, Col. Lloyd, or those claiming under him, will be subrogated to the rights of the creditors whose debts he has paid. Had the personal estate proved more than sufficient for the payment of debts, the devisees of Marengo might have called on the executor to the extent of such excess to redeem the mortgage, but they have no equity as against the devisees of other parts of his real estate, which would authorize their being ealled on to contribute for such a purpose. '- '

The 2d and 3d points filed by the appellants have been waived.

It is contended, that the allegations and prayer in the bill, did not authorize the Chancellor in allowing the complainant’s claim to the extent to which he has decreed its payment. If the specific prayer in the bill of complaint, to be paid this claim out’ of the realty, be regarded as. praying the payment of the whole amount of the promissory note which he'held, independently of any principle of substitution, and exclusively on the ground of its being' a debt due by the deceased, for the payment of which, there then remained in the hands of the executor no personal assets, it must be conceded that such a prayer could not be granted, according to the well established'principles , of • equity,. announced by this court in the case of Gist’s adm’rs vs. Cockey & Fendall, 7 Har. and John. 134, and 'the case of Collinson vs. Owens, 6 Gill and John. 4. Bat assume for the sake of argument that the complainant is not entitled to' relief according to his specific prayer therefor, is he not entitled to full relief upon the general prayer-contained in his bill Nothing is better settled than that if a complainant cannot obtain the specific relief for which he prays, he may obtain any i elief consistent therewith,' warranted by the allegations in his bill, provided it contains a prayer for general relief. Do the allegations in the bill warrant a decree for the payment out of-the real estate, of' the amount of the complainant’s claim, is the consequent inquiry ? In our opinion it does; it contains all the material statements of facts, necessary to shew the existence of the debt at the death of Jacob Gibson, and its subsequent non-payment! It then charges that the personal estate has been exhausted in the payment of debts, and exhibits an account passed by the executor before the Orphans court, proving that fact, and shewing the name of each creditor, and the amount of the debt due him by the deceased, which has been paid out of the personal assets, which is in effect the same thing as if the bill had at full length, and in the most formal manner, charged that Jacob Gibson died indebted to each of the creditors, nominatim, who are mentioned in the said account, for the amount therein stated to have been paid to them, and that such payments had been made out of the personal assets of the deceased. Upon a bill with such a statement of facts, and prayer for general relief, could a court of equity deny to the complainant the right of substitution? Assuredly not. The right of substitution is not a matter of fact, which a party must allege to entitle him to its benefit, but is the conclusion of law or equity drawn by the court from the statement of facts out of which it arises. The solicitors of the defendants contend, there is. no allegation in the bill, or proof in the cause, that the claims mentioned in the account exhibited from the Orphans court, are chargeable upon the real estate, to the extent of the insufficiency of the personal assets. If the substance and effect of the bill be as we assume it, such an allegation is wholly unnecessary; it is the necessary inference of law to be drawn by the court from the act of 1785, ch. 72, when the facts are proved or admitted before it, unless such inference be repelled by some plea or matter in avoidance. There is no such plea or matter of .avoidance, except as to the Tiltons, relied on or proved in the record before us, and as between the complainant and defendants, no such plea or matter of avoidance can ever arise upon any future stage of the proceedings in this cause.

The complainant’s claim as far as the correctness of the Chancellor’s decree is involved, must stand or fall upon the proofs and proceedings now in the record. Can it stand this test, is the next question to be inquired into ?

If the allegations of the bill be by the answers admitted, or being put in issue be proved, or being neither admitted or denied be proved, or a decree fro confesso be had against the defendants, as against all the defendants who axe sui juris, the result is the same. A decree for the sale of the real estate for the payment of the complainant’s claim, passes as a matter of course, he being substituted as against the realty, to the rights of those creditors whose claims have been satisfied out of his proportion of the personalty. How- then in these respects stands the complainant before us ? In a very different condition from the complainant in Collinson vs. Owens, where the defendant relied on the statute of limitation's, and the false and fraudulent character of the claims, under which the right of substitution was claimed. Here the statute of limitations has been in no wise interposed, to arrest his pursuit of the right of substitution.

As far as concerns the interests of Edward R. Gibson, Frances Tilton, Nancy Gibson, Joseph W. Reynolds and. Anne his wife, -and -Rigby Hopkins, he has obtained a decree pro confesso, and his right to a de.cree against them cannot therefore be questioned.

Is he entitled to the same- relief against the defendants who have answered? we will proceed to examine. The answer of Fayette Gibson admits all the material allegations charged in the bill, and consequently as to him, there is no error in the decree appealed from.

As to the heirs of Harriet Bennett,, she by her answer having admitted none of the claims paid by the executor, in virtue of which substitution is sought,' no decree could have been passed against them, founded on such substitution; but the complainant’s debt proprio jure, having been admitted by Harriet Bennett, and indeed fully established by proof, the property devised to her becomes liable to sale, to meet its just, contribution to the payment of so much of the complainant’s debt as- remains unsatisfied.

After deducting therefrom its pro rata distribution of the personalty. The lands conveyed by -Fayette Gibson to John W. Blake stand in the same situation.

Several objections to the decree founded on the answer of Edward Lloyd have beén urged; some of which form no ground for the reversal of the Chancellor’s decree, and may perhaps never necessarily arise in the cause; or if they do, it is after the proceeds of sale, under the decree, are brought into the court for distribution. Of this character is the exception taken on behalf of the devisees of Marengo, that by the agreement between the Farmers'1 Bank and Lloyd, (to which it does not appear that the devisees of Jacob Gibson ever assented,) the bank has released a portion of the security which it held for the payment of its debts, and that to the extent of the security thus relinquished, in the proportion that the value thereof bears to the value of Marengo entire, they are to be exonerated from the payment of the mortgage debt to the bank. 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 TF. Blake, united with the other parts of Marengo, to which Fayette Gibson was entitled, after paying their just contribution towards the mortgage, debt, and all other debts of the deceased, should 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 in reference to the other devisees, owners of Marengo, the mortgage debt to the bank must be deemed satisfied and paid, to the extent of such inadequacy.

The principle upon w'hich the other parts of Marengo, owned by Fayette Gibson, otherwise than by devise, are subjected to the payment of the contribution properly chargeable on the part of Marengo, devised to him, is, that by the covenants in his deed to Lloyd, he is bound to indemnify him against the mortgage debt, that but for the agreement between Lloyd and the Bank, the land conveyed to Lloyd would have been answerable for its proportion of the Bank debt; that a part of the consideration of the agreement, and one of its express stipulations was, that the Bank should retain its right of enforcing the payment of its debt, out of all that part of Marengo not embraced by the conveyance to Lloyd. If then Fayette Gibson seeks against the Bank, protection in a court of equity, under this agreement, he must hold himself bound by its stipulations. The exemption which he could successfully claim, and which could be extended to him, rests upon the broad principles of natural justice and equity; and an application for it could not be countenanced by a court of Chancery, but on his acquiescence in all the provisions of the agreement.

It has also been objected to the decree on the behalf of the devisees of Jacob Gibson, other than those of Marengo, that the Bank, by its agreement, having surrendered a portion of its security for the payment of its debt, thereby discharges them from liability, to the extent of the loss sustained by. such surrender. Of the soundness of this position there can be no doubt, but that it shews error in the Chancellor’s decree so as to authorize its reversal, is by no means apparent.

In the first place non constat,■ that any loss ever will accrue to the complaining devisees, in .consequence of the agreement between the Bank and Lloyd. It may be that Fayette Gibson’s remaining interest in the lands devised to him, so far as the same are properly chargeable therewith, is amply sufficient to pay his proportionate contribution to the payment of the mortgage, and other debts of his deceased father. We cannot, a priori, assume the contrary, and make it the basis for reversing the decree. But suppose such an assumption were made, is there any thing in the decree inconsistent therewith? It is true it directs a sale of the real estate of Jacob Gibson, or so much thereof as may be necessary for that purpose, for the payment of the mortgage claim of the defendants, The President, Directors and Company of the Farmers’ Bank of Maryland, and the claim of the complainant as stated in the proceedings, and all other debts due from the said Jacob Gibson, deceased.. But it would be a perversion of the meaning of the decree, to interpret it, as directing the proceeds of sale to be rateably distributed between the Bank, the complainant and all other creditors, without reference to the liens, and priorities of the several claimants, to the proceeds of sale of the respective portions of property sold; or that if when applying the avails of the mortgaged premises to the payment of the mortgage debt, it should appear upon the established principles of equity, that a larger portion thereof was extinguished and satisfied by the mortgaged estate, than was in point of fact paid to the mortgagee, the Chancellor would inequitably award to the mortgagee, when standing before him as a general creditor, a larger proportion of the proceeds of the sale of the residue of the real estate of the deceased, than was actually due. Although the decree directs the sale for the benefit of all the creditors, and against all the devisees, its meaning was reddendo singula singulis, according to their respective equities, as apparent from the record.

In truth these questions were not presented, by the facts before the Chancellor, at the time of the decree; they may or may not ever arise in the cause, and can regularly onlv do so, when the proceeds of sale are brought into court for distribution, and consequently can form no ground for the reversal of the present decree.

The decree is further objected to, because the rights of the widow, under the will of her husband, have not been reserved; and this objection we think well founded. By the 5th section of the act of 1798, ch. 101, sub ch. 13, speaking of the bar which is created by that act of assembly, by the widow’s acceptance of the devises made to her by the will of her husband, it is declared to be the intent of the act of assembly, and consonant to justice, that a widow accepting or abiding by a devise in lieu of her legal right, shall be considered as a purchaser for a fair consideration. The decree of the Chancellor makes no reservation of the rights of the widow under the will of Jacob Gibson, but declares that the purchasers from the trustee shall hold the property sold to them, free, clear and discharged from all claims of the parties to this cause, of whom Rebecca Gibson, the widow, is one. To conform to the act of assembly'the decree should have ordered the sales to be made by the trustee subject to the devises made to Rebecca Gibson, by the last will and testament of, the deceased. There is no intimation in the bill, or proof in the cause, that the provision made for the wife by the will is fraudulent, in being greater than the value of her common law rights, aiid therefore unjust and injurious to creditors. She is therefore entitled to the benefit of all the bequests and devises made to her by the will as á purchaser for a fair consideration.

The reversal of the decree is also urged upon another ground, which we think supported by the construction always heretofore given..to such decrees. In the commencement of the decree, the Chancellor declares, that the claim of the complainant is established to his satisfaction, except as against the defendants, James Tilton and Clara Tilton, to the extent of whose interest, it is barred by the act of limitations, and in a subsequent part of the decree, he orders that the real estate of the said Jacob Gibson, deceased, or so much thereof as may be necessary, be sold, for the payment of the claim of the'complainant, meaning of course, as he has above stated it to.-, bp established, except as against the Tiltons; with that exception, the whole claim of the complainant is decreed to be paid, out of the proceeds of sale, of all the devised property held by the defendants.

According to the views of this court, as expressed in the preceding parts of this opinion, this decree does injustice to the following defendants, and is therefore erroneous-as to them; viz. Edward Lloyd, Harriet Bennett and John Wilson Blake’s heirs. But inasmuch as sufficient appears in the record, to shew that a decree for the sale of the real estate of Jacob Gibson, or so much thereof as may be necessary for that purpose, for the payment of his debt, ought to have been passed; this court will not reverse the entire decree for the errors which we have recognized as imphtable to it; but will affirm the decree without costs in this court, so far as it relates to the sale of said real estate, for the payment of the debts due by the said Jacob Gibson, and particularly the claim of the complainant, as the same shall hereafter be stated by the auditor of the court of Chancery, under the direction of the Chancellor, upon the proceedings, exhibits, and proofs now in the record; and in accordance with the view expressed by this court,, in the aforegoing opinion, provided that sueh sale shall not be made of that part of the said real estate to which the defendant, Clara Tilton, is entitled, and provided, that in such sale, the rights of the defendant, James Tilton, and of the defendant, Rebecca Gibson, under the last will and testament of her husband, Jacob Gibson, he expressly reserved. The right of substitution is to be allowed in stating the complainant’s claim, and those of all other unpaid creditors, as against all the defendants, (except Rebecca Gibson,) against whom a decree pro confesso has been passed ; but such right is to be denied to the complainant, as against the heirs of Edward Lloyd, Harriet Bennett and John Wilson Blake ; nor is it to be extended to the other creditors of Jacob Gibson, against the heirs of the last mentioned three defendants, unless such creditors shall shew themselves entitled thereto, by the necessary proofs and vouchers taken under a commission issued for that purpose, or before the auditor of the court of Chancery.

It is thereupon this ninth day of February, in the year eighteen hundred and thirty-nine, by the court of Appeals for the Western Shore, adjudged, ordered, and decreed, that the decree of the court of Chancery passed in this cause on the 13th day of May, in the year eighteen hundred and thirty-six, be and the same is hereby affirmed, so far as the same is consistent with the annexed opinion, and so far as the same is inconsistent therewith, the said decree is hereby reversed and annulled, and the sale of the real estate hereby decreed, is to be subject to the rights of Rebecca Gibson, th¿ widow of the deceased; and that part of the Chancellor’s decree, which directs a sale of the real estate of Jacob Gibson, for the payment of the mortgage debt due The President, Directors and Company of the Farmers’ Bank of Maryland, is to be understood only, as applicable to the sale of the mortgaged premises ; whenever the Bank may claim in its character of a general creditor, it comes in, as do other creditors, not named in the bill; and the reservation in said decree, of the rights of the said James Tilton, is not to be understood as applying to any part of the mortgage premises to the prejudice of the rights of The President, Directors and Company of the Farmers5 Bank of Maryland.

And it is further, adjudged, ordered and decreed, that the costs incurred by the appellees in this court, shall be paid to them out of the proceeds of any sale or sales which may be made under this decree. And that this cause be and the same is hereby remanded to the court of Chancery, with power to pass such further decrees or orders as may be necessary to carry into effect this decree.