#### James Ramsdell v. Andrew C. Maxwell and another.

IFrito *of assistance: Decree: Tenants at sufferance: Possession.*A writ of assistance is tlie regular process for carrying out a decree of possession, and it lies on foreclosure sales. Its object is to compel parties who are bound by a decree to give up the possession which they hold as mere tenants at sufferance, and which, by the decree and sale under it, they have become estopped from further asserting; but it can be used to enforce only such rights.

*Tenant at sufferance: Tfew arrangement: Tenant at will.*'Where a tenant at sufferance is allowed to continue in possession under a new arrangement,, he ceases to be a tenant at sufferance, and becomes a tenant at will, and must be dealt with accordingly.

*286
      *Writs of assistance: Possession: Decree and sale: New contract.*A writ of assistance can. never be proper where there is any real controversy as to the right of iiosscssiou not precluded by the decree and sale; and is therefore not available where a new arrangement has been effected after the sale, and the possession is claimed to be held by virtue of such arrangement.

*Possession: New contract: Affidavits.*The original decree could have no force in settling rights under such new agreement, nor can the parties be required to try those rights on affidavits; but the possession must be sought in some way where the nature and extent of the rights under the new contract can be litigated.

*Possession: Foreclosure decree and sale': New arrangement: Specific performance : Writ of assistance.*A party in possession under a new arrangement after foreclosure decree and sale, who has filed a bill for specific performance of such new contract, is not subject, while such bill is pending, to have lus rights thereunder predetermined by a motion for a writ of asistance an the foreclosure suit; nor could an interlocutory order in the new suit, dissolving an injunction against obtaining possession under the foreclosure, anticipate the final decree so as to cut off the rights of either party, or operate as an adjudication as to the right of possession.

*Heard June 10.*

*Decided June 18,*

Appeal in Chancery from Bay circuit.

*Marston, Hatch & Cooley,*for complainant.

*A. 0. Maxioell,*in person, and *Auhley Pond,*for defendants.

CAMPBELL, J:

In this case a mortgage sale was made and sale confirmed. On the day of sale Ramsdell made an agreement with Maxwell, in furtherance or partial accordance with a previous arrangement which had not boon fully complied with, whereby Maxwell was to have the property back upon payment of certain moneys, and performance of certain conditions ; and it is disputed -whether he was or was not to have possession until performance. The sale was made April 4, 1874. Disputes arose as to certain matters, and ■on the 18th of September, 1874, Maxwell filed, a bill for specific performance, and obtained an injunction against any interference with his possession. An answer was put in, admitting the agreement, but qualifying the statements in the bill in some important respects, and submitting to perform if Maxwell would perform on his part within a rea*287sonable time. On this an order Avas made in that suit, dissolving the injunction unless Maxwell should make a conveyance of certain lands and payment of certain moneys within twenty days. This order Aras made on the 2d of October, 1874. On the 23d of October a demand of possession Avas made of Maxwell, and tender made of moneys and deeds and certain other papers, intended as a revocation or termination of his rights, which it is claimed he accepted, but he refused to give up possession. On the. 2d of November summary proceedings Arere commenced against him before Judge Oreen under the statute. These failed by an adverse ruling on the 12th of November, 1874, Avhich led to their discontinuance. On the 19th of November an *ex parte*order for a Avrit of assistance Avas granted by Judge Tennant, who AAas then sitting in Bay Circuit. On December 5th, upon an application previously made and argued, Judge Green made an order recalling the A\Tit. This order is appealed from.

A writ of assistance is the regular process for carrying out a decree of possession, and lies on foreclosure sales. Its object is to compel parties aaJio are bound by a decree to give up the possession which by the decree and sale under it they liaA'e become estopped from further asserting, and Avhen they have thus become tenants at sufferance. But it cannot be used to enforce any but such rights.

Where a tenant at sufferance is alloAved to continue in possession under a neAv arrangement, ho ceases to bo a tenant at sufferance and becomes a tenant at aáúII, and must be so dealt with. In *Allen v. Carpenter, 15 Mich. R., 25,*where the cpiestion arose concerning the right to displace by summary proceedings a tenant holding OA'er after foreclosure by adA'ertisement, Avhile there AAras a difference of opinion as to whether the relation had changed in that case, and whether the right had boon lost to take summary proceedings Avithout notice to quit, it was not denied by any one, that a new tenancy by agreement AArould ' change the relations of the parties entirely. And in the present case it *288is quite clear that Maxwell, whether he had or had not lost his right of possession, Avas not in possession as a tenant holding oyer after mortgage sale under the decree, but Ayas in under a noAY bargain.

This new bargain, whatever it may have been, was in litigation in a chancery suit upon which there was no final decree, and that litigation could not be decided upon a motion in another suit, nor could an interlocutory order in the same suit anticipate the final decree so as to cut off or determine the rights of cither party. The dissolution of an injunction against obtaining possession could not operate as an adjudication as to the right of possession, which was a fact in issue that could only be settled in that cause at the final hearing. In any other proceeding to obtain possession the facts have must been litigated in such Avay as would be appropriate.

But avo do not see how a Avrit of assistance can be proper where there is any real controversy as to the right of possession not precluded by the decree and sale. No one can be compelled to try a contract on affidavits, and it Avould be a Adolation of elementary principles to attempt it. If Ramsdell claims to be entitled to possession, the defendant is entitled nevertheless to dispute that claim and' have it determined in some legal or equitable proceeding whore there can be a hearing. And as the contest arises under an agreement made subsequent to the decree, of course no rights under the ucav agreement were settled by the decree.

The court below was, in the view of a majority of us, right in withdrawing the writ. Possession must be sought in another way where tire nature and extent of the rights under the ucav contract can be litigated. It would be improper for us on this hearing to discuss them.

The order must bo affirmed, Avith costs.

Cooley, J., and Geaves, Oh. J., concurred.

MarstoN, J., having been of counsel, did not sit in this case.