majority">

The opinion of the court was delivered by

Dorset, J.

This court, in reversing the decree of thé chancellor, so far from feeling a disposition to interfere with the acknowledged jurisdiction of ihe court of chancery. Wish to preserve it unimpaired. And in this case they think there is no authority to warrant his decision,'and that the principle involved in it, would in pi-actice not only be inconvenient, but subversive of the established modes of deciding the rights of property.

That a decree in equity for the sale of lands, to pay debts or legacies, or for the purpose of distributing the proceeds among those entitled, is a proceeding in rem, cannot be questioned, and that the chancellor has the power of enforcing such a decree, by ordering the possession to be delivered to the purchaser under the decree in certain cases; cannot be denied. The exercise of this power, in relation to all such persons as were parties to the proceedings, and whose rights have been determined by the decree, is essential to the full administration of justice; for as the decree,’ and sale under it, passes the right, it is but just and equitable that the possession should accompany it, as part of the title. Anri upon principle it would seem fit, that persons who come into the possession of rhe land pendente lite, diaiming title to it under the parties io the bill, or some of them, should stand in the same predicament with thosd whom they represent in point of interest, on the ground *24ffiat their condition cannot be bétter thart that' of those under whose authority they have obtained the possession. Té send the purchaser, under a decree of the court of chancery; in such cases, to a legal forum; to clothe his title with the posséssion, would be denying to that court the power bf efficiently enforcing rights which had passed in remjudicatam. But the cáse now before the court is essentially different; As the appellant, Tongue, was not a. party to the original decree, his interest cannot be affected by it; Besides, he was in the possessiori of the land, at the time the original petiticin ivas filed; -claiming, ádversély to the will of John Westeniys, under an escheat warrant. From such a possession he could not be removed, until his title was adjudged to be defective iff the regular and established coursé of judicial proceeding. Such an interest cannot, consistently with the principles of our jurisprudence, be the subject of inquiry, and decided on, in a summary manner, by' wáy of motion.

It would be both unnécéssáry arid improper, in the view which the court has taken of this subject, to decide whe-* ther the will of John Westeneys was revoked by liis Subsequent marriagé, and the birth of a child, óf whétlier thé lands were feschéatabléi It is sfifficierit for lis to decide, that altlioügh the court of chancery, in many instances, has jurisdiction to enforce its own decrees, by giving possession! without sending the purchaser1 to a court of law, there t<S seek redress by an action bf ejectment, yét that this case' is not one of that description!

The court do not mean to. intimate an opinion how far a third person, who comes into the possession during the pendency of the suit in equity, claiming adversely to the litigating parties, can after a decree and sale, be removed, in a summary way, at the instance of the purchaser.

DECREE REVERSED.

Citation profile

How this case has been treated — in progress