
    Lombard v. Atwater
    1. Equitable Jurisdiction: writ of possession. The holder of the patent title brought suit to set aside certain tax deeds as fraudulent; the defendant denied the fraud and prayed that his title be quieted, whereupon, after hearing the proofs, the court dismissed the petition and subsequently issued a writ of possession in favor of the defendant: Held, that the issuance of the writ was erroneous.
    
      Appeal from, Carroll District Court.
    
    Friday, June 16.
    The plaintiff, who is the holder of the patent title to the land in question, brought suit in equity to set aside as fraudulent certain tax deeds which the defendant held to said land. The defendant in his answer denied the fraud, and prayed that the plaintiff be adjudged to have no interest in the property and that his own title be confirmed and established, and for general relief. The case having been heard at the April term, 1874, of said court, a decree was entered in the following words:
    “Now, on this day, to-wit: April 8, 1874, this cause came on to be heard and is submitted to the court, and the court having heard the allegations of the parties and the proofs adduced by them, and being fully advised in the premises, finds the equities of the cause to be with the defendant.
    It is therefore ordered, adjudged and decreed that the plaintiff’s petition be and the same is dismissed, and that the defendant have judgment for costs of this action, taxed at eighty-four dollars and thirty cents, and that execution issue therefor, to which ruling and judgment plaintiff at the time excepts.”
    On the 24th day of April, 1875, there was filed an order in vacation, signed by the judge of the District Court in words as follows, to-wit:
    “ In the above entitled cause, decided at April, A. D. 1874, -term of said court, the clerk is hereby ordered to issue a writ of possession directing the sheriff of Carroll county, Iowa, to put the defendant, Fred. A. Atwater, in possession of the premises adjudged to belong to said defendant by decree of April term, 1874, of said court.
    Dated, April 21, 1875. J. R. Reed,
    
      Judge of the Hist. Court of Carroll Co., Iowa.”
    
    From this order plaintiff appeals.
    
      O. II. Manning and W. -A. Stanford, for appellant.
    
      Holmes cfe Reynolds, for appellee.
   Adams, J.

As the right of possession to property is something distinct from the title,' it does not follow that because plaintiff had no title, he did not have the right of possession. Furthermore, while the defendant prayed that his title might be confirmed, no decree was entered in his favor except for costs.

We think the court erred in'ordering the issuance , of a writ of possession.

Reversed.  