Briefly stated, the case is this: Certain parties brought ejectment against a non-resident having a tenant in actual possessiou of the land sued for. Process was not served on the tenant, and there was publication as to the defendant in that suit, who had no knowledge of the suit, and who, during its pendency, conveyed to the present plaintiff, who was equally ignorant of the action of ejectment having been brought, and was the beneficial owner of the premises; the non-resident being the mere holder of the title. Judgment by default went against the defendant, and a writ of habere facias possessionem issued to put the plaintiffs in that suit into possession, whereupon the plaintiff herein instituted this equitable proceeding to enjoin the execution of the writ.
The circuit court, where the judgment in ejectment was rendered, granted an interlocutory, and, on final hearing, a perpetual injunction, and this action was *271affirmed by the St. Louis Court of Appeals. The correctness of this judgment cannot be doubted. The ■statute is express that the action “shall be brought against the person in possession of the premises •claimed.” This means the actual possession, i. e., the possession in fact. Tyler on Ejectment, 472; McDowell v. King, 4 Dana, 67; Atwell v. McLure, 4 Jones (N. C. Law) 371. And section 2247 of the statute prescribes that a plaintiff, in order to recover in ejectment, must “ show that at the time of the commencement of the action the defendant was in possession of the premises claimed.” Under the facts stated this was not the case ; nor did the judgment in the ejectment suit recite that defendant was in possession of the premises.
But the judgment, although void, will be enjoined by a court of equity, which will not permit such a fraudulent abuse of legal process to go unrestrained. Mr. High says: “A perpetual injunction will be •allowed against the execution of a writ of habere facias possessionem, against the premises of one who was not a party to the litigation. And one who is in the quiet possession of real estate, claiming title thereto, may have an injunction to restrain others from dispossessing Mm by means of process growing out of litigation to •which he was not a party.” High on Injunction, sec. ■35¡7. Similar views are expressed in Goodenough v. Sheppard, 28 Ill. 81, and Banks v. Parker, 80 N. C. 157. The case at bar does not differ materially from those cited. In principle it is the same. And the arm of a court of equity would be greatly shortened if that oourt could afford no relief in a case like the present. The judgment is affirmed.