As to its application and distribution.

(a). Wilding v. Andrews, (1834) 1 Coop. t. Cott. 380.

(b) S. C. ; and see Anon., cited Sug. 14th ed. 105.

(c) Casamajor v. Strode, (1823) 1 S. & S. 381.

(d) Bevan v. B., (1823) 1 Coop. t. Cott. 381; 1 L. J. 0. S. Ch. 169.

(e) Seton, 6th ed. 352. For form of order, see Seton, 6th ed. 345.

(f) Miller v. Pridden, (1856) 5 W. R. 171; 26 L. J. Ch. 183.

(g) Thorp v. Owen, (1854) 2 Sm. & G. App. i.

(h) Heming v.Archer, (1846)9Beav. 366; 14 L. J. N. S. Ch. 169; see

The purchase-money of real estate paid into Court in a creditor's action, has been held to be legal assets (7) ; and where it proves insufficient for the payment in full of the debts and there is no personalty, it has been held that it ought to be applied, first in payment of the costs of the plaintiff and the defendants, who are beneficially entitled, pari passu as between party and party, then in payment of the plaintiff's extra costs as between solicitor and client, and then towards satisfaction of the debts (m); but, as a general rule, where there is personal estate to be administered, and the assets prove insufficient for the payment of debts in full, the legal personal representative is entitled to payment of his costs, charges, and expenses in priority to the plaintiff's costs of sale of the real and leasehold estate (n).

Is legal assets.

We may here observe that an incumbrancer consenting to a sale in a legatee's administration action, is entitled to be paid his principal, interest, and costs, out of the purchase-money, in priority to the costs of the plaintiff in the cause (o); but in a creditor's action, it has been held that he is only entitled to have his costs of the actual sale paid out of the proceeds, leaving his other costs and expenses to be borne by the general assets (p). He may put a stop order on the fund (q) ; but, even if he omit to do so, the plaintiff may be made responsible, if he permit the purchase-money to be paid out of Court without satisfying the incumbrance (r). As a general rule, a decree for sale of an incumbered estate does not, of itself, alter the rights of the parties; so that where estates subject to numerous and complicated incumbrances were sold, by consent, it was held that to authorize payment of the costs of sale in the first place out of the general fund there should have been a special direction in the decree; and that, there being no such direction, the money arising from the sale of each estate ought to be treated as the estate itself would have been; and that the mortgagees ought to be paid their principal, interest, and costs according to their respective priorities (s) ; so where a devisee in trust for sale is himself a creditor of the testator, his right to retain his own debt out of the proceeds of sale is not prejudiced by their payment into Court (t) ; and the ultimate surplus of the proceeds of sale belongs to the heir or devisee (u). If a mortgagee brings an action for the administration of the estate of his deceased mortgagor, his costs are those of a plaintiff in an ordinary administration action (x) ; and where a first mortgagee with power of sale unnecessarily filed a bill praying a sale, subsequent incumbrancers, although they consented to the sale, were allowed their costs out of the purchase-money, although it was insufficient to pay off the first charge (y). A mortgagee, in an administration action, has no specific claim on the proceeds of sale paid into the general credit of the estate, so as to entitle him to the accumulations (z).

Application, of, where estate incumbered.

And consider Morris v. Clarkson, (1819) 3 Sw. 558, and other cases cited in reporter's note.

{i) Thomas v. Powell, (1794) 2 Cox, 394.

(k) Todd v. Studholme, (1857) 3 K. & J. 324, 338 ; 26 L. J. Ch. 271 ; Cavendish v. C, (1875) 10 Ch. 319.

(I) Lovegrove v. Cooper, (1854) 2 Sm. &G. 271.

(m) Henderson v. Dodds, (1866) 2

Eq. 532 ; Ferguson v. Gibson, (1872) 14 Eq. 379.

(n) Re Spensley, (1872) 15 Eq. 16 ; 42 L. J. Ch. 21, administration suit by a mortgagee; and see Wetcn-hall v. Dennis, (1863) 33 Beav. 285, administration suit by a legatee ; but gee Pinchard v. Fellows, (1874) 17 Eq. 421; 43 L. J. Ch. 227.

(o) Hepworth v. Heslop, (1844) 3 Ha. 485 ; and see Tipping v. Power, (1842) 1 Ha. 405 ; 11 L. J. Ch. 257.

(p) Berry v. Hebblctlncaltc, (1858) 4 K. & J. 80.

(q) Todd v. Studholme, (1857) 3 K. & J. 324; 26 L. J. Ch. 271.

(r) lb.

(s) Wild v. Lockhart, (1817) 10 Beav. 320 ; and sec Aldridye v. West-brook, (1842) 5 Beav. 188 ; and Hall v. Macdonald, (1844) 14 Si. 1; Crosse v. Revy. Socy., (1853) 3 D. M. & O.

698; Wonham v. Maehin, (1870) 10 Eq. 447; 39 L. J. Ch. 789.

(t) Hall v. Macdonald, sup.

(u) Cooke v. Dealey, (1855) 22 Beav. 196.

(x) Wright v. Kirby, (1857) 23 Beav. 463 ; and see Be Spensley, (1872) 15 Eq. 16 ; 42 L. J. Ch. 21.

(y) Cooke v. Brown, (1840) 4 Y. & C. 227; 9 L.J.N. S. Ex. Eq. 41.

(z) Irby v. I., (1855) 22 Beav. 217.

Purchasers on taking a conveyance should he careful that the deeds are not improperly left in the possession of the releasing incumhrancer. Where such is the case, although they may not be postponed to him in the event of the money not reaching his hands, his action against them may he dismissed without costs, unless they have a covenant for the production of the deeds (a).

Purchaser and deeds, where estate incumbered.

If the purchaser, before completion, is served with notice of an application for the payment of the purchase-money out of Court, he is entitled to his costs of appearing on the application, although he make no opposition (b) ; but such costs will (as a general rule) be disallowed if he appear after the conveyance is executed : in such a case his proper course is merely to inform the applicants that he has no claim on the fund (e). Under special circumstances, however, he may, after conveyance, be allowed his costs of such appearance (d).