Frazer v. Palmer , 2 H. & G. 469 ( 1828 )

Earle, J.

delivered the opinion of the court. The argument of the appellants’ counsel assumed in this case, as true, the facts set forth in their petition to the chancellor, and if they are so to be considered, as for this occasion it seems to us they must be, they make a case entirely within the prim eiples of a former adjudication of this court.

George Lanham devised the whole of the balance of his estate, real and personal, after a bequest of some small legacies, to Charles D. Robinson and George L. Frazer, with a power to his executors to sell his land, after Charles D. Robinson arrived at age, and to divide the proceeds between him and George L. Frazer. Charles B. Robinson arrived at age some time before the 19th of October 1805, for at that time he bargained with John Frazer, one of the executors of George Lanham, for the sale of his legacy in the real and personal estate, thus devised to him by George Lanham’s will. Soon after, George L. Frazer also sold his legacy under the same will, to John Frazer. From the time of the purchase of those rights, until his death, in 1820, John Frazer remained in the uninterrupted possession of George Lanham’s real estate, using and considering it as his own; and just before his decease, he made his will, and devised it to the appellants. In 1821, soon after John Frazer’s death, John Palmer, the appellee, obtained separate conveyances from Charles B. Robinson and George L. Frazer, for all their right and title in and to the real estate, which was devised by George Lanham to them. After this he instituted an action of ejectment for this estate, against the appellant, Mary Frazer, who holding adversely, resisted the suit, until it was discontinued by the plaintiff. John Palmer then united with Charles D. Robinson and George L. Frazet in a petition to the chancellor for the appointment of a trustee to sell the real estate of George Lanham, pursuant to his will. The decree passed, and the trustee appointed sold the estate to John Palmer, who obtained the chancellor’s order on the appellants, to deliver the possession to him. This is the order appealed from.

With these facts before Us, we must entertain the opinion, that the chancellor, in issuing his order, overlooked the authority of Tongue v Morton. The appellants were not parties* to the decree for the sale of George Lanham’s real estate, of which they had been possessed for many years before, holding if under Charles I). Robinson and George L. Frazer, and adversely to their grant to John Palmer, as was well known to him. And, to use the language of the above mentioned authority, “the appellants could not be removed from such a possession, until their title was adjudged to be defective in the regular and established Course of judicial proceeding. Such an. interest could not, consistently With the principles of our jurisprudence, be the subject of inquiry, and decided on, in a summary manner, by way of motion.” The undeniable general power of the chancellor to enforce his decrees, which operate upon real estates, by ordering the possession of them to be delivered to the purchaser, appears then to us to have been amprovidently exercised by him in this instance, and his order is, therefore, reversed,

ORDER REVERSED,