Does the complaint state a cause of action? In the outset it may be stated that the burden is upon the party seeking the benefit of the proceeding to marshal the assets to “show that the fund to be applied affords a sure and adequate means of satisfying the debt, and that in resorting thereto the paramount creditors will not be unreasonably delayed or injured in any rights or deprived of any part of their debts. In short, the junior lienor must show affirmatively that it would be equitable in relation to all parties concerned to afford to him relief of this character.” 19 Am. & Eng. Enc. Law, 1050.
It follows, as a corollary of this doctrine, that the junior lienor must affirmatively show — at least allege — that he himself will receive a benefit from the proceeding, and that the senior lienors will not be materially prejudiced thereby.
We have no allegations as to the values of the properties included in the several deeds of trust, and in the deed of plaintiff from the Honnetts. We may infer, however, from a statement of the complaint that said lot 4 in block 5 in Jones’ addition to the city of Pine Bluff is worth the amount of the mortgage debt secured by it; that is, $2,700. That is the statement of the plaintiff. Moreover, the Honnetts have sold to the plaintiff the other properties for the sum of $5,000 cash, and, the plaintiff having agreed to pay that sum within ten days from and after the time said defendants should lift said prior incumbrances therefrom, we may safely conclude that that sum indicated the value of the property other than lot 4 in block 5, according to the estimate of the parties immediately concerned. The whole property involved would be valued at $7,700. Now, it is admitted that the mortgage debts amount in the aggregate to something more than $8,000. Furthermore, there is a large part of these debts which is called in question by the plaintiff; some because they have been paid in whole or in part, and some because they were contracted to cheat, hinder and delay other creditors in the collection of their debts. This charge of fraud is too general and vague and indefinite upon which to base inquiry, but, granting that the allegation is sufficient for the purpose, yet it must be noticed that plaintiff is not a subsequent creditor, but a subsequent purchaser, with full notice of the prior incumbrances when her purchase was made, and the further fact that her purchase is not yet complete, and nothing has been expended by her in furtherance thereof and cannot be upon the condition thereof until said prior incumbrances have been removed. This fact of the plaintiff not being in a position to attack said debts for fraud without some additional allegations and showing makes it apparent that she has nothing to gain by the proceeding sought, while it is seen that the creditors will likely suffer great inconvenience and annoyance therefrom. We therefore conclude that the chancellor did not err in sustaining the demurrer.
Affirmed.