New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1867-01-14
lLILL (OTKTS.

COURT or AITEALS--JAN. l2.-rctJre fIli Bench.
rIiE wEstCiu,tTR TAX LAVA RiGHWCf owSEg
OHriLING TO--IseION wupNGruLY ~ POW %
OF THE COU:r-NUsr SURRENDER POSSESSION
80 IilE Di1sElzEp.
william Chamberlain D., 'f 2i s''' i'''''' 'ii
This action was brought 10 f0rcclosa a ort0uco
or certain real estate n town. n the im' ~ liihg
the notice OF fPthdef M. i4 Iidu Wa IN posses ION
Tcasgrcr for taxes bat neither eho any unG,r
whom c claimed wa made party 70 the suit nor had
having proceeded 20 decree ." foreclosure and saie,
tiff, william Chamberlain, became tho purchaser.
Jhercup0n, without any notice 10 Mrs. Hal, the plain
tn applied Tor ana Obtained p VIZ ~ nsl,tanee
a. lie ,,s under so1c ~ The dcfrgdoTts I'm The action
The writ immediately executed and lirl Hall forcl
bly, elected from the premises. She immediately moved
upon which the writ Issued false. Justice scmg
ham, after argument granted the motion setting tne wit
49, "n ~ t ~ Nj ~ I'M tb,,,
made new motion 20 be restored which, alter argument,
denied by Justice Gilbert with costs. Mrs Han then
appealed 10 the General Term Ut Poue hkeep. where Ia
june last The order appealed from unanimously
affirmed with costs by tie four JUDGES or the second Dis
tiic Mrs Hn then appealed Ia The Court ~ Appeals,
where the argued at the last September term,
aud t Court has lust announced It's decision reversing
the order appealed from With costs I'm thar Court, and IN
the supreme Court ana granting an order that Mrs. Han
MoESGS 1T Vii be HinecessaTy To- notice several
things which have crept into tho case, ns the question
presented by the appeal depends principles entirely
independent Of the value Of The property ot the valid
iy OF LhC tax title under which the appellants now claim
possession IT is conceded INT Tue palhH was not en-.
titled 10 writ Of assistance oput hun IN possession OF
the mort Gagged premises Hgaiht the appellants. IT.
also admitted that the nppelarts were s.,ed ana ne
plaintiff was put I'm possession by force OF tho writ that
writ having been set aside and vacated on application Of
the appellants; the question H. whether the appellants
have legal right 10 be put back into possession Of tho
ttored TO the possession OF tho premises denied by
the Cour below upon the ground that The tax title under
cred unjust TO GUST the rgful owner and put Br Kings
buy, or any ono claiming pnder hlla Into possession
that II was obtained without notice 20 tho appellants
into possession under the defendants after the fling OF
notice Of lis pedns This fact however, seems TO have
Of assistance not Get aside by the Court and
longer be resoed to in support OF the plaintiffs posses
TO such writ as against these appellants, the Court
upon the hearing Of tho application might think have
would have been the ordinary course II tho Court liz
tended 70 give the plaintiff the benefit Of it, execution
set aside the writ and at 6S same time granted to he
plaintiff The full benefit Of It's execution 80 far as the
though the Court had refused their notion II the appel
ants had right TO have the writ set aside they doubt
be mockery to set aside ne writ, without restoring
ihorty of the Court, which has since been withdrawn
should be restored The general rule IS thai q wS S% sGy
mont order or decree has been reversed vacated res
been lost by OF such erroneous Judgment order or
decree. The case at bar furnished no exception TO the
rule In "a pdrte Reynolds Gains Rep, 5OO the SUI
premo Court awarded restitution 10 be made 10 Reynolds
who was turned out OF possession by mistake In executing
writ Of possession against him after Judgment he being
In possession prior to the commencement Of eectmet
suit to which he not party TO the effect
tho case OF Withers agt Harris q Lord Rayman, e0G,
where the Court upon setting aside the writ OF pOssess0n
awarded restitution But the OF Doe dem, Stephens
agt Lord q ADJ Ellis 6l0l, Is still 10 the point.
promises, obtained judgment and took out d writ OF
possession under which the Sheriff gave him possession
without ordering restitution Thereupon tho defendant
obtained rule calling on the lessor Of the plaintiff 10
show why writ OF restitution should not issue 10
the Sheriff commanding him TO restore the to
tho defendant The lessor OF the plaintiff Give
up possession alleging that he was entitled retain tho
lands mortgage and by virtue OF the Judgment Lord
Denme. ChiotJusee. said that .ln principle tho lessor