#### BANK UNITED STATES *v.*DELORAC’S EXECUTORS, ET AL.

Chancery practice — unequal assignment of dower — new assignment or contribution decreed— judgment creditors — sale by execution to pay debts.

Where there are several tracts of land taken in execution in the life of the judgment debtor, and lie die before sale, and the representatives proceeding to sell the land to pay debts, assign dower in the whole estate upon the tract held by one of the levies, discharging the other tracts and distributing the proceeds to the judgments whose levied held the land, such proceedings are unjust, and chancery will compel a reassignment of the dower on each tract, or, if sold to persons who are strangers to the record, will compel the creditors receiving the proceeds of the tract so discharged of dower, to pay to the creditor so charged with the entire dower,so much as to equalize the burthen on each creditor according to the land held by his levy.

Chancery. The case made is that of several judgment creditors, who had levied executions upon separate pieces of real estate in the lifetime of the testator. After the testator’s death, his executors applied to the Court of Common Pleas, sitting as a Court of Probate, for leave to sell the real estate of the testator to pay his debts, and obtained an order of court accordingly under our statutes, connected with an order to assign to the testator’s widow her dower in the premises. In executing this order, the dower of the widow in all the several tracts taken in execution, was set off entire upon the tract levied upon by the complainants. The whole estate was then sold, subject to the widow’s dower, so assigned. The proceeds of the sale of each tract levied upon, was distributed and paid over to the judgment creditor, in whose favor it had been taken in execution. The estate was insolvent, and little or nothing was distributed to the complainants, because of the assignment of dower. The bill seeks such a distribution of the proceeds of sale as will equalize and apportion the dower upon each of the judgment creditors according to their levies, and relieve the complainants from the entire burthen, or for a reassignment of dower in each tract.

*J.*Woods, for the complainants.

*T.*Corwin, contra.

By the Court.

The dower upon the estate taken in execution in several parcels, should not have been assigned wholly upon one *286of the tracts, to the discharge of the others, because such a course works palpable injustice. Such general assignment ought only to be resorted to, where the rights of third persons will not be affected by it. The complainants have a right to hold their levy discharged of the undue proportion of the dower assigned upon it, and a new assignment to that extent; or, to have contribution from the other judgment creditors benefited by this improper assignment of dower, of a sum from each, equal to the amount gained by the assignment. All the dower assigned upon the tract held by the levy of the complainants over and above one-third of that tract, unjustly encumbers it, and the other judgment creditors should contribute, if they would hold their lands discharged of the dower. The property has passed into other hands by the sale, and the only course open, by which justice can be done, is to hold each of those creditors to contribute to the complainants a sum equal to the value of the dower in their particular tract; and if the parties do not agree the amounts, we will take the proper steps *to*ascertain the value of the dower, &c. on each tract, and decree accordingly.

The parties then agreed the amount, and a decree was entered for the amount against each, without costs.