126 HARVARD LAW REVIEW. the death of the latter), he clearly could not ; for as to such a per- son his position would not be at all changed by the death of the judgment debtor or conusor, nor would he have any equity against him. Could he file a bill against the heir or devisee of the de- ceased judgment debtor or conusor to reach the land which had descended or been devised to him? In favor of a negative answer to this question, it may be said that the execution at law against land was not open to so great an objection in the mouth of a creditor by matter of record as in the mouth of a specialty creditor; for the rights of creditors by matter of record were always succes- sive, priority of time giving priority of right, while the rights of all specialty creditors were concurrent and equal. Still, the ques- tion must be answered in the affirmative, equity holding that every creditor of a deceased debtor is entitled to have all the debtor's property, so far as he has a claim upon it, applied immediately to the payment of his debt ; and therefore the relief given, in the case now under consideration, was the same that was given upon a bill by a specialty creditor, namely, a sale of the land (or of one half of it, as the case might be), with an account of the rents and profits, if necessary, until the sale took place.^ There is also another independent ground upon which the juris- diction of equity over creditors' bills against heirs or devisees may be sustained, namely, that of preventing a multiplicity of suits. To a bill by a creditor against an executor, an heir or devisee was never a necessary party ; but to a bill by a creditor against an heir or devisee as such, the executor was always a necessary party .^ The reasons for the difference are these: first, every creditor of a de- ceased debtor is entitled by law to be paid out of the debtor's personal estate, while only privileged classes of creditors are en- titled to be paid out of his land ; and therefore every creditor who is entitled to sue the heir or devisee of his deceased debtor, is en- titled i fortiori to sue his executor, while the converse, of course, does not hold. Secondly, as between the personal estate and the land of a deceased debtor, the debts of the latter fall by law upon the personal estate, and therefore the land is entitled to be ex- onerated from the debts by the personal estate. In other words, the land, even when it is liable to the creditor, is by law liable 1 Stileman v. Ashdown, 2 Atk. 477, 481, 608, Ambl. 13. 2 Knight V. Knight, 3 P. Wms. 331 ; Plunket v. Penson, 2 Atk. 51 ; Robinson v. Bell, I De G. & Sm. 630.
