Oliver Wendell Holmes, Jr.

“ That dismissal gave him a right to expect that a sale of property to which he was recognized as having a colorable claim would not be ordered until the title of the plaintiffs was made good. Even if he properly should have been allowed to remain a party to the bill in order to make sure that no decree should be made prejudicial to his rights, as to which we need not express an opinion, the dismissal of him from the suit, on the ground that no such decree could be made, cannot be turned into a weapon against him to prevent his objecting to the decree when it is made in fact. ”

“ With regard to the plaintiffs' contention that they are in possession, if they desire to rest on that, they can. If they prefer to sue and to settle the matter, it is not likely that Roller will deny the possession which in this case he affirms. But, to secure the plaintiffs' rights, the decree may be modified so as to allow them a reasonable time to sue, the bill to be dismissed unless they do so and it may be made a condition of the decree that, in case a suit is brought, Roller shall admit that he is in possession, as he now avers. ”

“ It was adjudicated in the other suit that the plaintiffs were not entitled to have Roller's claims disposed of summarily as an incident to a suit for partition, and therefore they cannot be heard to maintain in this suit that those claims are absurd. Indeed, whatever may be the final result, it is obvious that Roller shows a good deal more than a naked averment of title. That he holds under tax sale is not disputed, although it is argued that the sale was void. ”