If the Garnett’s in May, 1840, had proceeded to collect their debt against the estate of Charles Wilkes, they would not, according to the provisions of the Revised Statutes, have reached the real estate in question, in the regular course there marked out. Their proceeding was first, against the executors. That would have proved fruitless beyond the $2400. As there was no intestacy, their next remedy was against the legatees; arid this would have produced the amount of the claim. Their suit against the devisees lay beyond that against the legatees, and was open to them only upon the entire or partial failure of the latter. Eddy v. Traver, (6 Paige, 521,) to which I was referred, differs from the case before me in this, that the personal estate of Eddy was insufficient to *12pay his debts, and therefore the creditors from the first, had a right against the real estate. That right affected the whole land in the possession of the heirs at law, and having been enforced •against a part which one of the heirs had aliened, the alienee Avas subrogated to the creditor’s right against the residue of the land still held by such heir.
There is no doubt of the principle advanced by the Complainants, that the lien of a judgment upon the lands of the debtor# is subject to all prior equities which existed in favor of third persons against such lands, at the time of the recovery of the judgment. It is, in short, a lien upon such interest as the debtor then actually has, and is affected by the latent equities and liens of others. Herein it differs from the lien of a mortgage ; for the latter in favor of one who makes an advance in good faith without notice, is upheld against all such prior equities. The mortgagee is a purchaser ; the judgment creditor has a general lien upon the existing right of the debtor.
The defendant’s judgment in this case was recovered in January, 1837, and if they are to be affected at all by the claims set up in the bill, it must be by some equity in favor of the complainants which existed at that time. Hence those claims are to be regarded, as they would have stood in January, 1837. And it was in this point of View, that at the hearing I deemed it material to know whether the grievous devastavit of Horatio Wilkes, which has so much implicated his family, was committed before or after that period. If it were subsequent, the fact that he at that date had in his custody, funds of the estate which he might squander, and thus implicate the other.legatees, constituted no equity which could attach upon the land devised to him. The equity which is to impair this judgment, must be one prior to the judgment, otherwise the legal lien of the latter will prevail.
Horatio W-. after such lien attached, could no more divest or postpone it by a devastavit, than he could by a mortgage or a sale. In this question of priority, no reference is had to the time of the Garnett’s making their claims, or of its payment. The claim existed before the judgment, although enforced afterwards. On the principle upon Avhich the bill is founded, the claim fur*13nishes a basis for the equity set up, provided the waste of the estate had occurred prior to the docketing of the judgment.
But I do not think that the legal propositions for which the complainants contend, will support their case as it is exhibited by the proofs. They do not show when their alleged equity originated, except that it was between December, 1835, and January, 1840. The court cannot upon this proof, hold that it was before January, 1837. And my conviction is clear, that no subsequent devastavit could raise an equity which would interfere with the lien of the judgment.
I will illustrate this farther, by stating what I consider to be the rationale of the complainants argument, without however committing myself in its support. For this purpose, let it be admitted that on the first of January, 1837, Horatio Wilkes had wasted the estate and the Garnett fund, so that in 1840 the latter had to be made good by his brothers and sisters. I commenced with showing that in such a state of things the Garnetts, in the regular course, could not have reached the undivided real estate of Horatio which remains. The complainant’s argument is, that on the Garnett’s filing a bill in December, 1836, to enforce their claim, in which Horatio and all the others would have been defendants ; the law clearly entitled them to a decree for payment against Horatio, Hamilton, and the others as legatees. Then if pending that suit, the present complainants perceiving that they were to be brought in personally for the debt, had filed a cross bill against Horatio and the Garnetts, setting forth that an ample fund was left in Horatio’s hands to pay this debt, which he had squandered ; that as between him and them he ought to pay the whole of it, and that there still remained to him the undivided estate in remainder in the Laight street house; that this was devised to him by the will, and that in equity it ought to be applied to the Garnett debt, to make up from the realty left to him, the property of others left by the same testator, which he had wasted. And then the cross bill had prayed for a decree to sell this real estate, and out of it to pay the Garnett debt.
Such a course would have exhibited the claim ; and its justice "is perfectly manifest. The only open point in it is. whether such claim is a right or'equity enforceable directly against the land ; *14or whether it is any thing more than a debt for money paid, to which all the debtor's property is liable, but which is not chargeable upon any specific portion of it .until judgment or execution.(a) The complainants contend that it .is the former, and on that footing it would be an equity superior to the lien of a subsequent judgment. But my statement of the proposition shows, that the equity must exist prior to the judgment; and this the case before me does not establish.
I am therefore not called upon to decide, whether there was such an equity upon a devastavit prior to 1837.
If as seems probable, the waste occurred before the defendant’s judgment, the complainants ought to be permitted to present the question fairly to the court.
I do not feel at liberty to retain the bill for amendment at this late stage of the cause, and unless the defendants consent to its being amended on terms, it must be dismissed with costs, and without prejudice to a new bill.
There is one inducement on their part to permitting such amendment. In the event of the claim against them being sustained on this bill after amendment, they would not be subjected to the costs of the suit.(b)
See the difference between a right to proceed against a fund, and an equitable or other lien thereon, illustrated in the instance of specialty debts of the ancestor, the heir having aliened the estates descended. Richardson v. Horton, 7 Beavan’s R 112.
The defendants declining to allow the amendment suggested, the bill was dismissed with costs, and without prejudice.