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CALLAN V. MAY, 67 U. S. 541 (1862)

U.S. Supreme Court

Callan v. May, 67 U.S. 2 Black 541 541 (1862)

Callan v. May

67 U.S. (2 Black) 541


1. Real estate being sold under a regular proceeding of the circuit court, an order of the same Court awarding process to put the purchaser in possession, is not a decree from which the tenant can appeal to this Court.

2. If the tenant had an agreement with the purchaser, which gave him the right to remain in possession, his remedy was a bill for an injunction, in which a final decree could be passed and an appeal legally taken.

3. The order of a judge allowing all appeal, so far from being conclusive upon the Court, does not even imply that the judge himself has a settled opinion concerning the appellant's right.

The record brought up by this appeal showed that in 1862 a

Page 67 U. S. 542

cause was pending in the Circuit Court for the District of Columbia designated as Statham v. Callan. In that cause, the court made certain decrees and decretal orders in pursuance of which a sale was made by trustees of some real property in the City of Washington. The purchaser at the first sale made by the trustees was J. J. Waring, whose contract was annulled by his failure to comply with the terms of it. Another sale was then regularly made under the order of the court to Austin Sherman, who assigned his right to John Frederick May, and May having fully complied with the terms of the sale, a final order ratifying and confirming it was made by the court. May being by virtue of these proceedings the owner of the property in question, found John F. Callan in possession. Callan refused to go out, alleging that he was there under an agreement made between himself and Waring, the purchaser at the first sale, who had made default. He asserted also that May had confirmed this agreement of Waring, and made it binding upon himself by accepting the note which was due under it. May then presented his petition to the court, setting forth the facts and praying for process to put him in possession. Callan answered the petition. The court found that May was entitled to possession, and awarded him a writ of habere facias possessionem. Callan petitioned for an appeal to the Supreme Court. The appeal was allowed on special allocatur, by Mr. Justice Wayne, and the record brought up. May moved to dismiss on the ground that no appeal would lie from such an order as that made in his favor by the circuit court.

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