976 ALLISON WILLIA.MS. [191 ALLISON V. WILLIAMS. • 4-4070 . • Opinion delivered DeeenTher 16, '1935. 1. MORTGAGES-RIGHT TO WRIT OF ASSISTANCE.-A purchaser at a _foreclosure sale is not entitled to a writ of assistance to secure possession of the foreclosed premises from defendant who has acquired a new and independent right or title after the foreclosure sale, as where he subsequent to the sale contracted with the purchaser for the purchase of the premises, in furtherance of which some acts had been performed.,
ARK.] ALLISON V. WILLIAMS. 977 2. MORTGAGESTIME .. F;OR APPEALRegularity .of foreclosure proceedings could not be reviewed on an appeal perfected iwo -years subsequent to the entry of the foreclosure . decree. .. Appeal from Lawrence Chancery 'Coin% EaStern District; A.: S. Irby; Chancellor ; ,reversed.'• Reloate' Ileloat, for appellants. Ounnghhm, & atomiingham, for appellee. ',JoHxsoN, C. J. 'On. September 19,, 1933,. a. default , decree . of f oreolosure: was' entered.. in : the . Lawrence County Chaneery Court, wherein. Claud exe, caw; was . .plaintiff..and R. E. ,and Mollie _Allison and others were defendants, by the terms of :which dec-ree.cerT tain &scribed real. estate,. the property of; the Allisons, was ordered sold...In obedience tothis decretal order,the sale was duly made by the commissioner and subsequently was Teported to 'and approved by the court.• ,The plaintiff in the: case . was the . purchaser. Thereafter in April, 1934,. possession of the foreclosed premises • not-having been • surrendered -by . the Allisons. to, the purchaser ) a petition-for a.writ of assistance or possession was filed by the purchaser -at the sale against; those 'ill possession' of the . premises. To this petition -Mrs Allison _responded that her, continued . possession -of the ,premises was 'law-ful-because of a _contract Of purchase consummated.SObse-quent to the foreclosure sale and- decree,: and. that therefore the chancery court was 'without jurisdiction to- gra* the relief .prayed in the_petition.. The uncontradicted testimony adduced upon a trial of the petition for a writ of assistance was to the effect that, subsequent to the foreclosure decree and sale, the purchaser and Mrs. Allison entered into a written . contract for . the sale and purchase of the foreclosed prenai4es, and:that considerable acts and dealings were performed: by the parties in furtherance thereof. .Notwithstanding this .tincontradicted testimony, the Chancellor refaih&Vjilki'sdidioiT . O . ttlie petition and . granted • the 'prayer thereof:-, In this reversiblecrtor iás coMmitted. The rule iS aCcepted that a • wrik. -Of assi . Stance or posseSsion will . not iie . ngainst one lto , .h . as. acquired a' new, AO; hidependent right , Or , title subsequent to the Original litigation: . See-: 5 § 6,
978 [191 p. 1320, and cases there cited. Also see 2 R. C. L., § 4, pp. 729, 730. The office of the . writ of assistance has ever been confined; not only in this country, but in England as well, to lend aid to the original equity jurisdiction, and such writ can not be employed as a substitute for other common law or statutory actions. See authorities cited, supra. The new right, if any, acquired by Mrs. Allison subsequent to the original litigation can be inquired into and about only in independent litigation instituted for that purpose, and we pretermit any discussion of the jurisdiction or the merits of the: alleged rights. It suf.- fices to say that the . chancery court erred in granting the writ of assistance under the undisputed facts here considered. Appellant also . urges that the original, proceedings in foreclosure were irregular in many particulars, and that these alleged errors should be reviewed on this appeal. This appeal was perfected in this court on August 2, 1935, or almost two years . subsequent to the entry of the original foreclosure decree. Under repeated opinions .of this court : the foreclosure decree became 'final and con-elusive between the parties and their privies long prior to this appeal. See cases cited in volume 4, title "Judgment," §• 173, Crawford's Arkansas Digest. For the error indicated the cause is reversed, and the petition for a writ of assistance •is dismissed.
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