This ease is brought here on an appeal from an order of the district court of Graham County granting a writ of assistance in favor of the appellee, John Anderson; said Anderson being mortgagee, and one Peter Moore and wife being mortgagors, in a certain mortgage to the premises, the right to the possession of which constitutes the controversy herein.
Prom the facts in evidence, it seems that a decree of foreclosure had been rendered against the mortgagors, and a sale was had thereunder, but after the sale it was made to appear that the appellants were in possession of the premises and refused to surrender them; that appellants derived possession of the premises from the mortgagors, Moore and wife, after the execution by them of said mortgage, and with full knowledge thereof; and that they (the said appellants) had been parties to the original foreclosure suit, but that at their instance, and on their disclaiming any right or interest under their deed, an order had been made dismissing the claim as to them. Appellants now repudiate the disclaimer, by remaining in possession of the premises under their said deed from Moore and wife and refusing to surrender. Under these circumstances, the court below awarded a writ of assistance; and the question for us to determine is, was that action of the court proper?
A writ of assistance will not run against strangers, because the rights of parties who are strangers to the most solemn record remain unaffected thereby; but this writ is the usual and proper remedy against mortgagors and their privies,— those who obtain possession under them, and more particularly those who are parties to a suit in which they could have asserted and maintained all their rights. The vital question here now is the one of the right of possession. Other rights and equities may arise hereafter.
One who buys land upon which there is a valid mortgage takes it subject .to the superior equities of the mortgagee; and if, prior to his second purchase, he has gained possession thereof by virtue of a conveyance from the mortgagor, his *67right of possession is subordinate to the equities of the mortgagee. In the case at bar the appellants asked to be dismissed, in their answer disavowing any right or interest in the premises by virtue of their deed from Moore and wife. This was done. Now, however, they set up a title acquired under the homestead laws of the United States after they have obtained possession of the premises from Moore by and under said deed. This homestead entry was based upon their possession thus obtained under said deed from Moore and wife, and, if it can be asserted, will defeat the mortgage, subject to the equities of which they entered and now hold.
Such a fraudulent transaction as this ought not to be, and we think in law and justice cannot be, upheld. Having obtained possession of the premises from Moore and wife, they are in privity with them, as their grantors, and their right of possession cannot be held as paramount to the right of the mortgagee, the appellee herein. See Asher v. Cox, 2 Ariz. 71, 11 Pac. 44; Watkins v. Jerman, 36 Kan. 464, 13 Pac. 798; Bell v. Birdsall, 19 How. Pr. 491.
The writ of assistance, we think, was a proper remedy in this case, and was properly awarded. It is not necessary to pass upon other questions involved.
The judgment of the district court is affirmed. So ordered.
Barnes, J., concurs.