
    Job Polhemus v. Ephraim P. Emson.
    A bill contained a prayer for general relief, and, also, an alternative prayer that a voluntary partition might be established as against a judgment creditor, or that equity would so direct proceedings pending at law, as to set oif in severalty to the purchaser at the sheriff’s sale under the judgment, the part’assigned to the defendant in the voluntary partition. Held, that the reversal of a decree sustaining the voluntary partition, does not preclude equitable relief by making the partition in this court.
    Motion for decree dismissing bill.
    
      Mr. Joel Parker, for the motion.
    
      Mr. James Wilson, contra.
    
   The Chancellor.

The final decree made in this cause, Polhemus v. Emson, 12 C. E. Gr. 447, was, on appeal, reversed. Emson v. Polhemus, supra, 439. A motion is now made on the remittitur that the bill be dismissed. The ground of this application is, and the defendant’s counsel urges, that the decree of the court of errors and appeals fully and finally disposed of the whole of the complainant’s claim to relief in equity, and that it hut remains to this court to dismiss the bill. I do not so understand the opinion. That court, indeed, held that the voluntary partition between Iiodson, the judgment debtor, and Polhemus, the complainant, could not be validated in equity against the purchaser at the sheriff’s sale under execution on that judgment, because it was not valid in law; but it did not hold that the complainant was therefore without claim to relief in equity. The particular grounds on which the decx’ee appealed from was based, were held to be untenable, and the decree was therefore reversed. The bill not only prays that the voluntary partition may be established, but prays, also; in the alternative, that this court will so direct the pending proceedings in partition at law as to set off in severalty to the purchaser at the sheriff’s sale under, the judgment, the part assigned in the voluxxtary pax’tition to Iiodson. It also coxxtains the general prayer for relief.

The question whether, under the circumstances presented by the case, adequate relief ixx the premises may not be given ixx equity, was not passed upon in the appellate court. Hot only is thex’e ixo decision on that point, but it does not appear that there was any ixxtentioxx or disposition to decide it adversely to the complainant. It is due to that court that its silence be xxot misinterpreted, axxd that its decision be not extended beyond its legitimate and obvious limits ixx its application to the case. It is no less due to it that its decision be not made the ground for upholding an injustice which it did not intend to sustain. Though the voluntary partitioxx is xxot valid against the purchaser under the judgment, the complaixxant’s claim to relief in equity is by no means exhausted. Indeed, it is xxot affected. The views presented ixx the opinion of this court ixx this case, as to the relief which would have beexx administered if this court had felt constrained to hold the voluntary partitioxx invalid against the purchaser under the judgment, have not beexx in anywise disapproved by the appellate tribunal, and, as-before suggested, it would be dealing unfairly with the decision of that court, to impute from its silence on that bead an intention to disfavor those views. How that the voluntary partition has been held invalid, those views should have application. The partition should be made in this court, for here it may be made in accordance with equity. The motion for decree dismissing the bill is denied, but without costs.  