By the Court.
delivering the opinion.
The object of this bill was two-fold; first, to foreclose the mortgage given by Wimpee to the administrators of Price; and to enforce their lien upon the fund in the hands of the Sheriff, from the sale of the mortgaged property, in accordance with the agreement between the parties, at the time the property was sold; and, secondly, to have a receiver appointed to take charge of the partnership effects of the former firm of Wimpee & Price. Wimpee was the real defendant in the bill, and the partnership creditors were called in, not to litigate their claim upon the fund, or to obtain decrees against the estate of Price; but in order that they might be bound, by the decree against the fund, and against Wimpee, the surviving copartner. No decree was prayed for against the creditors. And in this aspect of the proceedings, we see no error in the ruling of the Court.
Did it appear that the estate of Price was insolvent, then perhaps, there would be equity in allowing these creditors to* Toe heard. And in such case, the funds might be withheld from the hands of the representatives of Price, and applied directly to the demands of the creditors of the concern. But not only is there, the absence of any allegation to that effect j but we infer from the argument, that in point of fact, the *280contrary is true; that the estate is abundantly good for all its liabilities.
It seems too, that this fund was raised from the individual property of Wimpee. And the individual debt of $2,500, due by Wimpee to the estate of Price, and which is secured by the mortgage, would be more than enough to cover the whole amount of the money collected,and would be entitled to priority over the copartnership debts. But in the end, this will make no difference, as the estate of Price is bound for the whole, and I suggest it merely as a ground, why it would be unreasonable to permit the firm creditors to intercept this cash, and divert it from the due course of administration.
By an examination of the mortgage, it will be seen, that contrary to what was assumed in the argument, these partnership debts are not provided for. The mortgage was given for the double purpose of securing the estate of Price, in the individual claim held on Wimpee, and to which I have already alluded, and to indemnify the estate against loss m having the partnership debts to pay; and for no other purpose.
We see no sufficient reason therefore, why this fund should be withheld from the mortgagees. Nor can we acconut why it is, the partnership creditors should be fighting over this money, at an expense and delay, and at most, insufficient to satisfy their debts, instead of pursuing the estate directly and getting their money.
Judgment affirmed,