
    William Chamberlain, Executor of Christian Stamler, deceased, v. Young Choles and others.
    Where a writ of assistance, having been improperly granted, has been executed, and is afterward set aside, the person dispossessed under it is entitled to be put back into the possession.
    The court setting aside the writ should, by the same order, require that the party dispossessed by it be restored to her possession.
    Such order affects a substantial right of the parties, and is appealable.
    Although the person dispossessed may have no valid title, yet the court will protect her possession until she is removed by due process of law.
    Appeal by Ella Hall, Caleb S. Marshall, and Ehodes Kingsbury, from an order of the General Term in the second district, affirming the order of the Special Term, denying the application of the appellants to be restored to the possession of the mortgaged premises.
    The action was prosecuted to foreclose a mortgage. It was commenced in September, 1862, and after decree and sale of the premises to the plaintiff, a writ of assistance was granted on the ex parte application of the plaintiff, directing the sheriff of the county of Westchester to remove the appellants from the premises, and to put the plaintiff into possession.
    The sheriff, by virtue of the writ, expelled Mrs. Hall, who was in the actual occupation of the premises, and delivered the possession to the plaintiff. The above-named appellants were not parties to the action; and on their motion the court, at Special Term, vacated and set aside the writ of assistance, without, however, making any order restoring Mrs. Hall to the possession. The plaintiff still remaining in possession, and refusing to yield it up, the appellants applied to the court to be restored to the possession. This application was denied, with costs; and the order having been affirmed at General Term, the question comes before this court upon an appeal from the order, and upon a motion made by the plaintiff to dismiss the appeal.
    The appellants claim possession under one Kingsbury, lessee, under a lease from the treasurer of Westchester county, given upon a sale of the property for non-payment of taxes. It is also stated that Mrs. Hall went into possession originally (in May, 1862) under one Cameron, for the purpose of taking care of the property. It does not, however, appear what his interest was. The property was sold for taxes in November, 1862, and the lease delivered to Kingsbury (Mrs. Hall’s father) on the 3d of March, 1863, since which time Mrs. Hall has claimed to occupy the premises as the tenant, or hy permission, of her father. The printed case contains several other matters, which are deemed immaterial, in view of the decision of the court.
    
      Amasa J. Parker, for the appellants.
    
      J. H. Reynolds, for the respondent.
   Mobgau, J.

It will be unnecessary to notice several things which have crept into the case, as the question presented hy the appeal depends upon principles entirely independent of the value of the property, or of the validity of the tax title under which the appellants now claim possession.

It is conceded-that the plaintiff was not entitled to a writ of assistance, to put him in possession of .the mortgaged premises, as against the appellants. I't'is“also admitted that the appellants were ejected, and the plaintiff was put in possession, hy force of the writ. That writ having been set aside arid vacated on application of the appellants, the question is, whether the appellants have a legal right to he put back into, possession of 'the premises.

The application of the appellants to he restored to the possession of the premises was denied by the court below, upon the ground that the tax title under which they claimed was invalid. It was, therefore, considered unjust to oust the rightful owner, and put Mr. Kingsbury, or any one claiming under him, into possession.

- The papers upon which the court granted the writ of assistance are not before us. It, however,, appears that it-,was obtained, without notice to the appellants, upon an affidavit of the plaintiff ■ that Mrs. Hall came into possession under the defendants after the filing of notice of Us pendens. This fact, however, seems to have been disproved. But it is sufficient to say, that the writ of assistance was set aside by the court, and can no longer be resorted to in support of the plaintiff’s possession. It must be assumed that the plaintiff had no right to such a writ as against these appellants, or the court, upon the hearing of the application, might, I think, have refused to make an absolute order setting it aside. ' That would have been the ordinary course, if the court intended to give the plaintiff the benefit of its execution.

It is difficult to understand upon what theory the court set aside the writ, and at the same time granted to the plaintiff the full benefit of its execution. So far as the appellants are concerned, it is the same thing to them as though the court had refused their motion. If the appellants had a right to have the writ set aside, they, doubtless, had a right to be placed in statu quo. It would be a mockery to set aside the writ, without restoring them to possession of the premises.

The appellants were ejected by force under the authority of the court, which has since been withdrawn; and the question is, whether, as matter of law, they should be restored.

The general rule is, that, when a judgment, order or decree has been reversed or vacated, restitution will be made of all property and rights which have been lost by reason of such erroneous judgment, order or decree. The case at bar furnishes no exception to the rule. In Ex parte Reynolds (1 Caines, 500), the Supreme Court awarded restitution to be made to Beynolds, who was turned out of possession by mistake in executing a writ of possession against him after judgment, he being in possession prior to the commencement of an ejectment suit to which he was not a party. To the same effect is the case of Withers v. Harris (2 Ld. Raym., 806), where the court, upon setting, aside the writ of possession, awarded restitution.

But the case of Doe dem. Stephens v. Lord (7 Ad., 2 Ellis, 610), is still more to the point. The lessor of the plaintiff, who was mortgagee of the premises, obtained judgment and ttiok out a writ of possession, under which the sheriff gave him possession. . The court afterward set aside the writ for irregularity, without ordering restitution. Thereupon the defendant obtained a rule calling on the léssor of the plaintiff to show cause why a writ of restitution should not issue to the sheriff commanding him to restore the possession to the defendant. The lessor of the plaintiff refused to give up possession, alleging that he was entitled to retain the lands as mortgagee and by virtue of the judgment. Lord Denmau, Ch. J., said that, on principle, the lessor of the plaintiff could not be allowed to retain possession. As he had been enabled to obtain possession with an appearance of authority from the court, to which he was not entitled, he ought not to keep that possession. All the judges concurring, an order was made that the possession be restored to the defendant.

The court will not, in such a case, stop and inquire into the validity of the respective titles. The plaintiff having title may, doubtless, enter into possession of the premises if he finds the possession empty, but he must take care that he does not enter with force. The law is very careful not to permit one man to acquire of another the possession of prop-. erty by his own illegal act. (Curtis v. Hubbard, 7 Hill., 437.) Certainly the court will not permit the owner himself to make an improper use of its authority to expel a party who is in peaceable possession of real estate.

And it may be added that there is no other way for the court to vindicate its authority in such a case, except to award restitution.

It is claimed, however, that the order in question is not 'appealable. This claim is based upon the theory that it was a mere matter of practice whether the court would award restitution or not. But I think it very clear that the decision affects a substantial right, and involves a very important principle in the administration of justice. Although it may be true that Mrs. Hall has no title upon which she could defend her possession as against the plaintiff, she has a clear right to be protectéd in that possession until she is removed from it by due process of law. The possession itself is prima, facie evidence of title, and she cannot be deprived of it with-tout due process of law. The process having been withdrawn by which she was turned out-of possession, it is a matter of course to restore her to that possession.

. The order appealed from should be reversed, with costs, in this and the Supreme Court, and an order granted restoring her to the possession of the premises.

Poetes, Leonard, Peokham and Smith, JJ., concurred; Davies, Ch. J., and Weight and Hunt, JJ., thought the order not appealable.

Judgment reversed, and possession awarded to Mrs. Hall.  