
    Leake vs. Cannon, et als.
    
    1. Where a tract of land, intended to be sold, was laid off into lots with streets intersecting each other for the benefit of purchasers, and the lots were sold: Held, that the obstruction of such streets, by one or more of the purchasers, to the injury of other purchasers, was a nuisance relievable in chancery.
    2. Where such land, so divided, was sold under a decree in chancery, upon a «credit of one, two and three years, and the bill still pending, and the purchasers come into possession under the sale: Held, that the property was still sub jitdioe, that the purchasers were quasi parties, and that the court had the power, on the petition of any purchaser, to have the nuisance abated in the name of the complainants.
    This is an appeal from a decree of the chancery court of Franklin, directing the abatement of a nuisance.
    The executors and devisees of John McNairy, deceased, filed their bill in the chancery court at Franklin, in 1838, praying art execution of the trusts of the will, under the supervision of the court. The court ordered a sale of the real estate, in order to effect a more just and equitable division amongst those entitled there1to. This sale took place in accordance with the decree, and notes were taken from the purchasei's for the consideration money, payable in instalments, in one, two and three years. Amongst other tracts sold, was the one on which said McNairy lived at the time of his death, adjoining the town of Nashville, containing the number of448 acres, of gx-eat value.
    The clerk and master, under whose direction the sale took place-, divided this tract into lots of convenient size, and laid off public sti*eets, intersecting each other and running through the tract. A map was made of the lots and of the streets, and this map was exhibited to purchasei’s on the day of sale. On the day of sale Joseph Leake, N. Cannon, John Nichol, James McCombs, and othei’s, became purchasers of lots. Cannon, McCombs and other purchasers enclosed their lots, and obstructed one of the streets which passed by the property of Leake.
    Leake filed his petition on the 28th day of October, 1840, in the chancery court at Franklin, setting forth the above facts, and stating that one of the main passways, leading from his property to the Charlotte Turnpike, having been obstructed, the value of his pi’operty had been greatly diminished thereby, and praying that N. Cannon, J. McCombs and others, purchasers, might .be notified to appear before the court, to show cause why the petitioner should not be allowed his right of way as exhibited on the day of sale by the map of the premises, and why said obstructions should not be removed.
    The petition was verified by the affidavit of the petitioner, and was filed dui’ing the pendency of the bill filed by the executors and devisees of McNairy, and before the notes for the purchase money under the sale were collected. On motion, (which was argued,) Bramlett, chancelloi’, ordered that the parties appear and show cause, &c., and that the clerk and master report the facts to the court touching the allegations in the petition.
    The clerk and master reported the facts as above set forth, upon which the chancellor decreed that the defendants should remove the obstructions they had placed in the street, on or before the 1st day of January next thereafter, and that they be enjoined from placing any other obstruction in said street, or in any other street laid off on the map as exhibited on the day of sale; and that a special order issue to the sheriff of Davidson county, directing him to remove the obstructions after the 1st day of January next there-* after, in the event the defendants failed to comply with said order made on them.
    From this decree the defendants appealed to the supreme court,
    
      Campbell, for petitioner.
    
      Ewing, for the defendants.
   TuRley, J.

delivered the opinion of the court.

The devisees of John McNairy, filed their bill in the chancery court at Franklin, for the sale of real estate devised by the will, for the purpose of making a division. The court decreed a sale, which was made by the clerk and master under the supervision of the court. A portion of the land, adjoining the town of Nashville, was laid off in to lots, with intersecting streets. The petitioner and defendants became purchasers of lots; the sale was made upon a credit of one, two and three years, which time has not expired, and the case is still in the chancery court, abiding the time for a final decree. Petitioner and defendants have taken possession of the lots purchased by them, and the defendants, in improving, have closed up some of the streets, to the injury of the petitioner, and this petition is filed, asking of the chancellor to have them opened, which he ordered. It is not denied that a chancery court has power to relieve in cases of nuisance, which the stopping of these streets is, but it is contended that this must be done by original bill, and not as is sought in this case, by petition. This is a question of practice, not of principle, and, in the absence of authorities, ought to be settled in such a manner as would give the most expeditious and cheapest remedy. -

The subject matter of this dispute is already in a court of chancery ; it has been sold by its order, and the parties to this proceeding, came into possession under the sale. That a court of chancery has power over this property so long as it remains sub judice, to protect it from waste and depredation, no one will deny, and that for this purpose, purchasers are quasi parties, who may be brought in by the court at any time, is equally true. But, it is said, this must be done by the original complainants and not by the. co-purchaser. There is but little to be gained by disputing about the mode of doling a thing, if the thing is to be done.

It can make but little difference whether the defendants are brought into court in the name of the original complainants or the petitioner, who is immediately injured by their acts. But if the proceedings have to be in the name of the parties to the bill, we have no doubt that the petition was properly filed, for otherwise the court could have no information of the wrong done, and the steps necessary to be taken to abate the enclosures df the defendants, can be in the name of the complainants and not the petitoner, We think the authorities sustain this practice. See 2 Page Rep. 316: 3 Eq. Dig. 578, pl. 9: Robertson’s practice, 387: 2 Smith’s Chan, practice, 213..

We, therefore, think the decision of the chancellor was correct, and affirm it.  