
    No. 243
    NUNN v. HUTCHISON, Sheriff
    Ohio Court of Appeals, Summit County
    No. 737.
    Dec. 19, 1922
    This opinion has not been published except in Abstract
    LEASE — RIGHTS OF LESSEE — (1) Party in possession of property must be made party defendant in foreclosure proceedings — (2) Action to restrain sheriff from seizing property does not ''determine rights of lessee to property — (3) Writ of possession can' be used only against parties to foreclosure suit — (4) If an attempt is made to disturb his possession, stranger to suit may enjoin sheriff from taking action.
    Appeal from Court of Common Pleas
    Attorneys — Arter Fleming, for Nunn; Mottinger & Evan, for Hutchison.
   WASHBURN, P. J.:

Epitomized Opinion

The owner of certain property on which there were two mortgages made default, but before any suit to foreclose was brought by the mortgagee, the owner leased and delivered possession of the property to Nunn. The mortgagee instituted proceedings to foreclose, but did not make Nunn a defendant, taking no notice of Nunn’s rights. Nunn seeks to en-' join the sheriff from distributing his possession of the property, by means of the writ of possession. Held by the Court of Appeals in granting the injunction:

1. The party in possession of ’property must be made a party defendant to a foreclosure suit in order to give said party his day in court.

2. An action brought by’a person in possession of property to enjoin the sheriff from interference with such possession, does not necessarily determine said party’s rights in the property.

3. A writ of possession can be used only against the parties to the foreclosure suit, and cannot be used to disturb the possession of a stranger to such suit. The writ should be executed only when the right is clear, for it cannot be used to litigate conflicting rights not already adjudicated.

4. If an attempt or threat to execute a Writ of possession is made, a stranger to the foreclosure suit may obtain an injunction restraining the sheriff from taking action.  