
    Tongue vs. Morton.
    Appeal from the Court of Chancery.
    The case is accurately stated by the appellant’s counsel in his argument, made at this term before Buohanan, Eaule, Martin, and Dorset, J.
    
      Magruder, for the appellant.
    The facts in this case are, that John Westeneys, on the 29th August 1786, executed a will, in which he directed all his estate, real or personal, to be sold by his executors, and after paying his debts and funeral charges, that there should be remitted to Messrs. Eliza and Mary Steries, & Co. of Edinburgh, J2260 st’g. After some trifling legacies^ the remaining part of the proceeds of his estate, he gave to his beloved friend, and intended wife,, Mary Steries,. to. be remitted and paid to her as soon as possible arid convenient after his death. The testator wen.t to Edinburgh, married Miss Steries,, by whom he. had issue,, and. lived some years,. The will was not admitted to'probat till, th.e year 1808, In. 181,3 letters of administration de bonis non,, on the estate of the testator, were granted to. Thomas Reliman, who, as ««mV. d. b. n° petitioned, the chancellor to. appoint a trustee to sell. the. real estate Of the deceased-, and the chancellor passed a, decree to that effect at February term 18178 In August 1817, the trustee reported, that under' the said, decree he had sold the property;, and. that Joseph Morton, the appel-: lee, became the purchaser,. This, sale was ratified on the. 14th of Nov. 1817- The appellee, filed a. petition, stating that Tongue, the appellant, without any right or legal authority, had; taken and held possession-of the land-sold to. him, alleging the same to fie subject to.escheat for, want of the heirs of Westeneys, The petitioner prayed the- chancellor to grant him an. injunction, to put him in possession, against Tongue, who appeared and put in an, answer. A commission issued, knd testimony was taken.. The chancellor ordered an injunction to;be issued, as prayed.
    
      A decree in equity for the sale oí* lands to pay debts or legacies, or for the purpose of distributing the pro» ceeds among those entitled, is a pro. ceeding in rein. The chancellor has the power ofenibi cmg such a decree, by ordering the possession to be delivered tq the. purchaser under the decree, in certain cases.
    The exercise of this pow er, in i ela * tion. to all such persons as were parties to the proceedings, and whose rights haves been determined by the decree, is essential to the full adniim.it,ration of justice. Persons who come into the possession, of the land pen* dente lite, claim» ing title to it under the parlies to the bill, or some of' them, stand in the same predicament with those whom, they represent ia point of interest
    But where a per» son was in posses»* sion at the time the bill was filed, claiming adversely, and was not a party to the decree, his interest .cannot be affected by it; and. from such a possession, he cannot be removed until his title is adjudged to be defective in the regular and established course ofju- ' diemf proceeding), and not, in a summary manner by way of morion
    How far a tim’d person, who comes, into the posseision during the pendency of the suit in equity, claiming adversely to the litigating parties, c«tn, af.er a decree & sale, be removed in a .vunvmarj way at the instance oí the puiN chaser? Puere
    
    W bethel- the will in this case was re* yoked by a subsequent marriage $nd the birth of a child? ¡¿uer,$'
    
    
      On these, facts, the counsel contended, that tips decree., was erroneous — 1. Because the marriage and. birth of a child, revoked the will of Westencys. He cited Rob. on. Wills% 395, ' 2. Because the chancellor was not authorised to direct the sale at the instance of the administrator de bonis, non, under the act of 1785, ch. 72, s. 4, 3. Because, the appellant, not being a party to the proceedings, and claiming under no person who was a party,, his title, could not be inquired into in this summary way,' at the in-., stance of the , purchaser, under the chancellor’s decree. 4. Because in no, case can process, of' this, description be, issued, unless the title, to the property has been first decided by the court, and the decree directs a safe to be made of the. property, and naming the property, or giving it some other certain description. This decree only directed' a sale of the estate directed by the will of J. W. to be sold, and there is no pi-opf in this case that J. Wi was seized of the land no.w in- dispute,, at- the time he made his will. 5. The whole proceedings, und.er the will is erroqeous, because, if the will was valid, it appears by the proof In the case that Mrs. Westeneys, (formerly Miss Meries,) who was io have the proceeds of sale, survived her husbaud, and chose to hold the land.
    
      Shaw and Ridout, for the áppellée.
    pÁs the court did hot take into view any of the points insisted on by the appellant’s counsel, except that relative to the power of the court of chancery to issue the injunction referred to, the authorities referred to by the counsel for the áppellee are omitted. J They insisted, that the chancellor could not da otherwise than cause possession of the premises to be delivered to the purchaser. That the appellant had not such an interest as to enable him to become á party to these proceedings, and to entitle him to an appeal. Ills appeal is from the issuing of a judicial process of the court; and not from the decree confirming the sale which had been made of the premises. 1
    
    
      Magruder, in reply, was stopped by the court.-
   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 ffiat 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.  