The following opinion on rehearing was filed February 22, 1906. Former judgment adhered to:
Barnes, J.When this case was before us the first time the judgment of the district court was affirmed. See Escritt v. Michaelson, ante, p. 634, where a clear and concise statement of the facts will be found. A rehearing was alloAved; the case has been heard by the court, and the question now is, shall we adhere to our former decision?
It is strenuously contended by counsel for the plaintiff *641that the supersedeas bond, which is the foundation of this action, contains conditions not required by the statutes; that the district court had no right or authority to make the payfiient of rent one of its conditions; that all that was required to supersede the,order of the district court granting the writ of assistance was to give what is commonly called a waste bond; that the order of the court requiring the bond to be conditioned for the payment of the rent rendered it Aroid (at least as to that condition), and the judgment thereon cannot be sustained. If it be true that an order granting a writ of assistance is an order for the delivery of the possession of real estate within the meaning of the third subdivision of section 677 of the code, as it stood before the adoption of the amendment of 1903, then the plaintiff’s contention is well founded. It seems to us, hoAvever, that such is not the case. The section above mentioned, as amended, reads in part as follows:
“No appeal in any case in equity now pending and undetermined, or which shall hereafter be brought shall operate as a supersedeas, unless the appellant, or appellants, shall within twenty days next after the rendition- of such judgment or decree, or the making of such final order, execute to the adverse party a bond Avith one or more sureties as follows: * * Third — When the judgment, decree, or order directs the sale or delivery of possession of real estate the bond shall be in such sum as the court, or judge thereof in vacation shall prescribe, conditioned that the appellant or appellants will prosecute such appeal without delay and will not during the pendency of such appeal commit, or suffer to be committed, any waste upon such real estate, and pay all costs, and if the appeal be from an order of confirmation of sale the bond shall be further conditioned if the appellant will pay to the purchaser the value of the use and occupation of the property from the date of the undertaking until the delivery of the possession if the order appealed from be affirmed.”
It is insisted that the order granting a writ of assist*642anee was an order directing the delivery of the possession of real estate within the meaning of the statute above quoted. We cannot agree with this contention. A writ of assistance is the ordinary process used by a court of chancery to put a party, receiver, sequestrator, or.other person into possession of property when he is entitled thereto either upon a decree or upon an interlocutory order. Stanley v. Sullivan, 71 Wis. 585, 5 Am. St. Rep. 245. The most familiar instance of its use is where, as in the instant case, land has been sold under a decree foreclosing a mortgage, but it is also employed wherever a court of equity, having jurisdiction of the persons and the property in controversy, has determined the rights of the litigants to the title or possession of the real estate. The remedy is founded on the rule that the court of equity, where it can do so justly, Avill carry its oavu decrees into full execution Avithout relying on the cooperation of any other tribunal. The rule is well established, that the Avrit will issue in favor of a purchaser at a sale of real estate under a decree, but will only be allowed against parties to the suit, their representatives, privies, or those Avho came into possession under one of the parties Avhile the suit Avas pending. The writ Avill not issue where the rights of the party have not been fully adjudicated in the principal suit. Indeed, it is the practice in many jurisdictions to incorporate an allowance of the writ in the order of confirmation; and this rule is followed in some of the districts in this state. Without doubt it is the proper practice, and one Avhieh would have prevented the present controversy. So it may be said that a writ of assistance performs the same office in a suit in equity as does an execution in an action at law. It is nothing more than the process by which the court of equity finally carries its judgment or decree into effect.
The authorities in this country are divided on the question as to Avhether an appeal lies from an order granting such a writ, and we might be justified in holding that such an order is not appealable, Heretofore, however, we *643have taken a different view of the matter. In Merrill v. Wright, 65 Neb. 794, 101 Am. St. Rep. 645, we entertained an appeal from such an order, and determined the questions involved on their merits. We also passed on the merits of the order in the present case without questioning the right of appeal, and we are of opinion that an order granting the writ of assistance is appealable as a final order. It does not follow,'however, that it is such an order as is embraced in the third subdivision of section 677 of the code, that is to say, an order for the delivery of the possession of real estate. The statute above quoted was evidently intended to apply to judgments rendered and orders made in actions where the title or right to the possession of real estate are involved as the subject of the litigation, and not to an order for a writ of assistance which may be necessary to carry the judgments and orders of a court of equity into effect, after all the rights of the parties have been determined and nothing remains but to execute such judgments and decrees; and it is our opinion that the order in question is one of those which can he superseded only by an order of the court; that in making such order the court may require it to be conditioned upon such reasonable terms as he may direct. In the case at bar the plaintiff was a tenant of the owner of the equity of redemption to certain lands in Antelope county; an action was commenced against such owner, and all other parties interested in the premises, to foreclose a mortgage thereon; judgment of foreclosure was rendered; an appeal from that decree was prosecuted to this court, where the judgment Avas affirmed. The property was thereafter sold under the decree, and in due time such sale was confirmed. From the order of confirmation the case was again brought here on appeal, and a hearing resulted in the affirmance of that judgment. The plaintiff herein had been in possession of the premises as tenant of the defendants in said action from the beginning, and during the pendency of the litigation. After a deed to the premises had been executed by the sheriff in accordance *644with the final order of the court, the plaintiff refused to vacate, and still withheld the possession of the premises from the defendant in error. The litigation being ended, and all of the rights of the parties having been judicially determined, there was nothing left for the defendant to do but to bring an action at law to recover the possession of the premises, or apply to the court, in the same case, for a writ of assistance to carry its judgment into effect. The defendant pursued the latter course, and the court having-made such order it was within his power to fix the terms upon which it could be superseded during the pendency of an appeal. That the defendant was entitled to the use and occupation of the land from and after the date of the order of confirmation of sale there can be no doubt; and if the plaintiff desired to retain possession of the premises during the pendency of his appeal, the condition that he give a bond to pay a reasonable rent for the use and occupation thereof was proper and reasonable, and such a condition as the court had undoubted authority to exact. If we should sustain the plaintiff’s contention we would establish the rule that, after a decree of foreclosure, and sale of the premises, and a confirmation thereof, one who is bound by the decrees and orders of the court may refuse to comply with the same and compel the purchaser to apply for an order for a writ of assistance, may prosecute an appeal from such order, and retain possession of the premises during the pendency thereof, without paying rent to the owner, although he is entitled to the use and occupation of his land from and after the date of the order of confirmation of sale. We cannot believe that it was the intention of the legislature to establish such an unjust and inequitable rule by the adoption of section 677 of the code above mentioned, and we decline to give it such a construction. Having reached the conclusion that it was proper for the court to require the plaintiff to give the bond in question in order to supersede the order for the writ of assistance, it is unnecessary for us to determine the question as to whether or not it is a good common law obligation.
*645Several other questions have been discussed by counsel, but an examination of our former opinion convinces us that they are satisfactorily disposed of therein. For the foregoing reasons, we are of opinion that our former judgment should be adhered to, and it is so ordered.
Judgment accordingly.
Sedgwick, C. J., concurs in the conclusion reached.