Wilson v Fielding. Hillersden v Fielding
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1718 |
| Date | 01 January 1718 |
| Court | High Court of Chancery |
English Reports Citation: 23 E.R. 1098
LORD CHANCELLOR.
.1098 WILSON V. FIELDING 2 VERN. 763. [763] de term S. michaelis, 1718, in curia cancellari^;. Case 663.-wilson versus fielding. hillersden versus ftelding.(i) [1718.] Lord Chancellor. [1] Eq. Ca. Ab. 143, pi. 10, S. C. One dies indebted by mortgage and simple contract :ò one of the simple contract creditors gets judgment of assets cum acciderent. The executor applies the assets to pay off the mortgage.--The simple contract creditors shall stand in the place of the mortgagee, as to what he has exhausted out of the personal assets ; and this being only by the aid of equity, all the simple contract creditors shall come in equally with the creditor that got judgment. The executrix applies part of the personal assets in paying off a mortgage. (2) The plaintiff Wilson, who was a creditor -by simple contract, brings his action against the executrix, who pleaded plene administravit, and he takes judgment against the executrix, to be satisfied out of assets guando acciderent, and now brought his bill against the heir to compel him to refund so much of the personal assets, as had been applied to pay off the mortgage'. And Hillersden, and others, the plaintiffs in the other cause, being likewise creditors by simple contract brought their bill to compel the heir to refund and to be paid their debts. (3) [764] And the question was, whether Wilson, by virtue of his judgment, was to be preferred to the other creditors in point of payment. Adjudged that the plaintiff Wilson being only relievable in equity, all the creditors should be paid in proportion, for the judgment could not avail him at law, no assets coming afterwards to the hands of the executors ; but if there had been personal assets, as a lease for years, a bond, or the grant of an annuity in a trustee's name, then, although a creditor could not come at it without the aid of a court of equity, yet the assets should be applied in a due course of administration: (4) but in this case, the compelling the heir to refund, is a matter purely in equity, and a raising of assets, where there were none at law. (5) (1) Cited in Sir Charles Cox's Creditors Case, 3 P. Wms. 341. Hartwell v. Chillers, Amb. 309. (2) The executrix had confessed judgment to mortgagee on his mortgage-bond, a large sum having become due for interest on the mortgage-money. R. L. (3) The bill charging that the heir at law had received...
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