Conyers v. Davis

11 R.I. 527, 1877 R.I. LEXIS 35

Opinion

Dureee, C. J.

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 Ms 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.

L. O. M. Salisbury, for complainants. B. N. (f S. S. Lapham, for respondent.

Decree accordingly.