Albergottie v. Chaplin , 31 S.C. Eq. 428 ( 1858 )

The opinion of the Court was delivered by "

Johnston, Ch.

We think the Chancellor’s decree is sustained by principles too well established to admit of doubt.

The demurrdr admits what the plaintiffs themselves allege, that the defendants “ lay claim to the plantations” of which they are in possession “ as owners thereof.’’ There is no alleged privity between the parties, nor any thing to constitute the occupants “tenants in common” with the plaintiffs; so that if this Court should order an issue or an action to try titles, the result of such trial could not bring back the cause here for partition. The case, in no respect, resembles the case of Gibbs vs. Elliot, in which there was a privity among the parties as co-tenants, rendering it proper for this Court to construe the will, in order to ascertain the rights of the parties as co-tenants under it. But this is an open warfare of adverse titles, to oust the defendants, Chaplin and Sams, from the land, in order to partition it among the other parties. This Court is not the forum for such a purpose. The occupants are not compellable to discover their title ; but the plaintiffs must go to law to sustain their title, if they can; which Court in the trial is fully competent to construe the will.

It is ordered that the decree be affirmed, and the appeal dismissed.

Dunkin and Wardlaw, CC., concurred.

Appeal dismissed.