¶1delivered the opinion of the Court:
¶2Lewis H. Brown, a colored man, died seized of the lot of ground in dispute five or six years ago, leaving a widow, the defendant, but no children.
¶3The complainant filed his bill as one of the heirs at law of the deceased to have the property sold for purposes of partition, and made the widow, who was in possession, a defendant to the suit, with Young, who was co-heir with the complainant. Prior to this she had set up a claim to the whole under an alleged devise from her deceased husband, but the will had been lost, and she had given up an attempt to establish it by parol proof.
¶4She then authorized her counsel, Mr. Ennis, to compromise with the heirs of her husband, on condition of having the property sold, and their paying her one-half of the proceeds., This offer was accepted by the heirs, and they employed Mr. Swann to file a bill for that purpose.
¶5The bill was accordingly filed by Mr. Swann on their behalf, and for the purpose of. saving costs the clerk was directed by him not to issue a subpoena against her, and this direction was indorsed on the bill. No subpoena was issued, but Mr. Ennis appeared for her and filed an answer confessing the allegations of the bill, and assenting to any decree the court might think proper to make. A decree was accordingly passed ordering the property to be sold.
¶6The property, was sold, and brought a fair price, the petitioner, Fallen, becoming the purchaser. He has paid *225all the purchase money into court, and the heirs have taken their share according to the compromise.
¶7But the widow refused to surrender the possession,'and Fallen presented his petition to the court at Special Term for a writ of possession. That court refused to grant the writ, and from that order the case was brought into this court by appeal.
¶8At the time the decision of the court below was made, the court had no information of the facts, since then set out fully in the affidavit of Mr. Ennis, showing that he had full authority from Amelia Brown to make the arrangement for compromise on the terms already stated, and therefore to appear for and answer the complainant’s bill in her name.
¶9She must, therefore, be considered a party to the suit and bound by the decree.
¶10The order of the court at Special Terra is rescinded, and it is now ordered that the writ of possession issue as prayed for in the petition, and that defendant pay the costs of the proceeding consequent upon said petition.
¶11Other members of the court do not concur in the reasons above given for its decision, but all concur in the judgment.