Opinion
March 10, 1877.
The complainant in a suit for partition must, if his title is disputed and in doubt, establish his rights at law before proceeding with his bill, notwithstanding the estate in question is in the hands of a receiver appointed in another suit. In such case leave may be given to bring ejectment, and an order made confining the defence to the question of title, and forbidding the issue of an execution without permission therefor.
BILL IN EQUITY for partition. — On motion to dismiss the bill.
L. C.M. Salisbury, for complainants.
B.N. S.S. Lapham, for respondent.
It is the settled practice in chancery for the court not to proceed with a bill for partition, when the plaintiff's title is disputed and in doubt, until he has established his right in an action at law. 4 Kent's Comm. 364, and cases cited in notes; Freeman on Coparcenary Partition, § 502. Under this rule the bill must stand over to give the plaintiffs an opportunity to recover in ejectment. There is a difficulty suggested in the case at bar. The estate is in the hands of a receiver appointed by the court in another suit. We think, however, the difficulty is not insuperable. We can give the plaintiffs leave to bring and prosecute their action of ejectment against the defendant, notwithstanding the receivership, confining the defence to the question of title, — the execution, if the plaintiffs recover, not to issue until permitted by this court. An order may be entered to that effect.
Decree accordingly.