Wilson v. Polk ( 1849 )

Mr. Justice Clayton

delivered the opinion of the court.

The appellant became the purchaser of a tract of land at a commissioner’s sale, under a decree of the superior court of chancery, in the case of J. J. Parker v. James M. Baker & Charles J. Starr. After his purchase, he filed a petition in the court for a writ of assistance to turn Polk & Edwards out of possession of the premises, and to put him in. The chancellor refused the application, and an appeal was taken to this court.

This appeal is not taken by a party to the suit, either complainant or defendant. The same may be said of the application for the writ. It is laid down in 2 Smith’s Ch. Pr. 214, that this writ of assistance cannot regularly be issued at the instance of one not a party to the cause. The purchaser can only proceed by getting the vendor to make application for the process. The chancellor did right, therefore, in refusing the application.

This appeal does not seek a review of the former decree; but it asks a decision upon the rights of persons not then before the court. Such summary mode-might do great injustice. It might involve a decision of legal titles, which ought only to be settled in a court of law. Or it might lead to a summary determination of equitable titles, which ought to be adjudicated in a regular and plenary suit. In a mere order for process, a person might be turned out of possession whose rights had never been tried. The present appellees were not parties to the suit in the court below, but are the persons sought to be turned out of possession.

Without determining the other points which have been presented, we think the application was properly refused.

Order affirmed.