Phelps v. Harris
101 U.S. 370

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U.S. Supreme Court

Phelps v. Harris, 101 U.S. 370 (1879)

Phelps v. Harris

101 U.S. 370

Syllabus

1. A., although out of possession of certain lands in Mississippi, filed his bill under a statute of that state to remove a cloud upon his title to them. The question of title was directly raised and litigated by the parties. The court being of opinion that he was not entitled to any relief in the premises, dismissed the bill. A. thereupon brought ejectment against B., the defendant

in the former suit. Held that the decree did not render the main controversy res judicata, as the court merely decided in effect that the bill would not lie.

2. A power to "sell and exchange" lands includes the power to make partition of them.

3. Where a testator devising land in Mississippi appointed a trustee with power "to dispose of all or any portion of it" that might fall to the devisees and "invest the proceeds in such manner as he might think proper for their benefit," this court, without laying down as a general rule that the words "dispose of" import a power to make partition, holds, in view of the opinion of the Supreme Court of Mississippi on the precise point in a case between the same parties, although not announced under such conditions as made it res judicata, that the trustee had power to make partition.

4. It is not a valid objection to the partition that the trustee authorized to make it did not give his personal attention to it, but by agreement with one of the heirs demanding it, submitted it to disinterested persons, whose arbitrament he confirmed by executing the necessary indenture.

The facts are fully stated in the opinion of the Court.

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