In briefly stating my grounds of dissent I shall — except in some isolated instances — refrain from fortifying the principles for which I contend with texts or decided cases, for the all-sufficient reason, as I contend, that they are well settled as logical sequences from fundamental principles of the law, as relating to the question involved, and which is only one of practice (as will later appear), since the record discloses no obstacle to appellants' right to the possession of the involved real estate, and for which reason my objections are confined exclusively to the remedy that appellants invoked for the purpose of enforcing their right of possession. No question of appellants' right to accruing rent of the premises is involved, but only their right to the possession as against appellees.
My position is — that in the circumstances, as developed by the record, and as stated in the majority opinion, the exclusive and only available remedy open to *Page 785 plaintiffs by which they might be placed in possession of the involved property was and is a writ of possession to be issued by the Crittenden Circuit Court under whose judgment the land was ordered to be and was actually sold and purchased by plaintiffs' remote vendor at the decretal sale that was had pursuant to that judgment. If that action was still on the docket such a motion could have been made by them giving notice to appellees (the alleged wrongful detainers) of their purpose, place and time of doing so; but if that action had gone off the docket it was subject to reinstatement by proper procedure for that purpose, and after being so reinstated the motion for a writ of possession could be made and ordered by the court; provided appellants were entitled to it on the merits of the case. Instead of procuring such a writ of possession, in either of the manners stated, appellants instituted in an inferior court to the circuit court this forcible entry and detainer action to recover the possession to which they claim to be entitled. In other words, they applied to a separate court, as well as an inferior one, for complete, finished and final enforcement of the circuit's court's judgment. The universally adopted practice to obtain possession by the purchaser at a judicial sale is by a writ — when the recalcitrant possessor was either a party to the litigation resulting in the judicial sale, or by one in privity with him — which writ is denominated in the text books and opinions as a "writ of assistance." See 24 Cyc. 55, 56. But it is called and universally referred to in this jurisdiction as a "writ of possession." The referred to text shows that such process is the proper one for the purchaser to obtain possession, and especially so when the possessor sought to be ousted occupied the relationship to the litigation as is stated, i. e., a party to the action, or one in privity with the owner of the sold premises who, of course, was a party.
Each of the appellants here, who were defendants in this forcible entry and detainer action, sustained such a relationship to the action in which the sale was ordered and actually made, and also to the premises ordered to be sold. One of them, Mrs. Mary Goodloe, was a party to that action — she being the widow of her deceased husband who owned the land ordered to be sold and for whose debts and settlement of whose estate the sale was ordered — but whether free from her right *Page 786 of dower, or encumbered with that right, is not shown by this record. At any rate the situation, at the time this action was instituted in the inferior court in which it was done, was such as to entitle appellees (plaintiffs in this action) to a writ of possession obtained in the manner hereinbefore set out, and which I contend was their exclusive remedy. That contention, where the remedy by a writ of possession is available (and which is true in this case as pointed out), is based upon what I conclude is an incontrovertible and logical deduction from the facts. Such deduction is, that courts should not approve a practice whereby a superior court having exclusive jurisdiction to order the sale of real estate may be deprived of its jurisdiction to completely enforce its decrees and to permit the enforcement, to the extent that it is unfinished, to be completed by an inferior court who never possessed any right to order the land sold, or to put the purchaser at any such sale in possession, which is a part of the enforcement authority inherent in the superior court possessing exclusive jurisdiction to render the decree. See 34 C. J. 737, section 1139.
It will be remembered that, neither plaintiffs in the instant action as remote vendees of the purchaser at the judicial sale, nor such purchaser, nor any intermediate vendee of the purchaser, had ever been placed in possession of the property. The only extent to which the litigation in which the sale was ordered and made had progressed, was the rendering of the judgment, ordering the sale, its making and confirmation, followed by a deed from the master commissioner. At that stage of the proceeding (which was the actual one here) there yet remained to be performed — as a part of the enforcement relief inherent in the court rendering the judgment — the putting of the purchaser in possession of the sold premises, and which relief that court could undoubtedly grant. In upholding the right of appellants to pursue the remedy they employed (forcible entry and detainer), the majority opinion announces the principle that an inferior court may step in at the juncture above referred to and itself determine whether or not the purchaser is entitled to the possession, and if so to award it to him, and which amounts to nothing more nor less than saying that awarding possession to the purchaser in such cases and in such circumstances — although *Page 787 a part of the enforcement of the circuit court decree — may be taken away from the court rendering the decree and conferred upon such inferior court.
It is admitted that the law is to the effect that a perfect stranger to the litigation in which the decretal sale was ordered (with not even privity relation thereto) may not be ousted by a writ of possession issuing from that court, and that the purchaser as against him would be entitled to the remedy invoked in this case, or an action of ejectment — dependent upon the facts — but, as above pointed out, we have no such case. Upon the traverse by appellants to the Crittenden Circuit Court the motion made by them to dismiss the "traverse" was treated by the circuit court as a motion to dismiss the writ, and which I think was correct. The trial in the circuit court upon the traverse is a de novo one, and it appears to have been conceded by everyone connected with the case that the motion was intended to be one for a dismissal of the action upon the ground, no doubt, that the remedy employed was not available to the plaintiffs therein.
For the reasons stated I do not think it was, and I am persuaded that the order of the circuit court dismissing the action was correct, and that its judgment should be affirmed. Wherefore, I most respectfully dissent.