“Woods, J.,
(after stating the facts.) The objection is made at the threshold that the petitioner cannot have the assistance of the court in the way asked to obtain possession, because it was not the purchaser, but comes as the grantee of the purchasers at the master-commissioner’s sale. The authorities cited in support of this objection do not fully support it. In Van Hook v. Throckmorton, 8 Paige, 33, the court says:
“There is ho settled practice of this court entitling a subsequent purchaser from a purchaser at a master’s sale as a matter of right to the .assistance of the court to obtain possession of the premises which his grantor had purchased under the decree. ”
And in People v. Grant, 45 Cal. 97, and Stanley v. Sullivan, 71 Wis. 585, 37 N. W. Rep. 801, the question was one of statutory construction, and' the decisions have no general application. But, whatever the general .rule in that respect is, it is not controlling in the present case; because, by the order of September 1st, this court recognized, and, in effect, declared; a substitution of the Chicago & Erie Company in the place of the purchasers at the sale, in respect both to rights and to duties and'liabili’ties, That order, which was made with the consent of par-lies, besides directing the receiver to deliver possession “to the said Chicago & Erie Railroad Company, as the grantee, and assignee of said'purchasers at .the commissioner’s, sale, .had herein,” contains this clause:
[659]*659“And the court now reserves the right to resume the possession oí said railroad and other property in case the said Chicago & Erie Railroad Company shall hereafter fail or refuse, upon the order of the court, to pay into this court any money allowances for costs, expenses of the trust, or for claims against said receiver; and for that purpose the court retains jurisdiction of the said railroad and other property.”
I f this did not make the Chicago & Erie Company a parly to the cause within the meaning of equity rule 9, which authorizes the issue of the writ of assistance for the use of a party, it certainly entitles it to the benefit of rule 10, whereby it is declared that—
“Every person not being a party in any cause, who has obtained an order, or in whose favor an order shall have been made, shall be enabled to enforce obedience to such order by the same process as if he were a party to the cause; and every person not being a party in any cause, against whom obedience to any order of the court may be enforced, shall be liable to the same process for enforcing obedience to such order as if he were a party to the cause.”
The petitioner is therefore entitled to the writ, if the facts justify the granting of it.
The answer of the respondent has in it the proposition that, by reason of the conduct of the receiver “as agent and representative of the mortgagees and bondholders,” his receipt of rent from the Wabash Company, and other facts alleged, “a general tenancy was created between the mortgagees and bondholders, of the one part, and the Wabash Railroad Company, of the other part.” In respect to this it is enough to say that the receiver did not make, or attempt to make, any arrangement which should extend beyond the term of the receivership. Without the consent of the court, I suppose, he could not have done so. The fact is that, during the possession of the receiver, he complied with the tonus of the contract of June 1, 1887, in so far as they were obligatory upon the Chicago & Atlantic Company, so that there was, by-reason of the receivership, no breach of the contract in that behalf; and if, instead of a sale, the suit had ended in the restoration of control to the Chicago & Atlantic Company, the relation between the two companies in respect to that contract would have been the same — the contract would have been just as binding upon them — as if there had been no receivership; and so, in the language of the answer, it remained true, until the receiver turned the property over to the petitioner that “the receiver and the Wabash Company entered upon the joint use and occupation of tins railroad; * * * the receiver holding under his appointment, as aforesaid, and the Wabash Railroad Company holding and occupying * * * under the aforesaid contract of lease.” That contract, whether it created a tenancy or an easemept, having been made pending the suit, the. rights of the Wabash Company under it were necessarily held subject, to the decree, as much as if that company had been a party to the action. rl?he suggestion at the argument that the contract was made before the filing of ibe cross-bill of Bippus is immaterial, because the bill of the Farmers’ Loan <fc Trust Company sought a foreclosure of both mortgages, and consequently there was when that contract was made, in respect to both mortgages, a Im jjeudens as complete, 1 suppose, as if the' [660]*660cross-bill had also been pending. Besides, the decree upon the first mortgage alone is a complete foreclosure of the rights of parties claiming under contracts made with the mortgagor after the' commencement of the suit to foreclose that mortgage. When, therefore, the purchasers at the sale, in accordance with the terms of the decree in that respect, gave notice to the master commissioner of their election “to abandon and disclaim” the contract of June 1, 1887, with Ashley and Talmage, and all supplemental agreements, the result was that, immediately upon the surrender of possession by the receiver, all right of possession in the Wabash Company under that contract ceased; and, if that company has any ground for rightful resistance to the petitioner’s claim for full and exclusive possession, it must be because, by conduct or by contract, the petitioner has conferred that right since it took possession at the hand of the receiver.
In respect to this point the attorneys for the Wabash Company, in a brief filed since the argument, say:
“ On the foregoing facts, the first question presented is whether this court ought to attempt, in this proceeding, to determine the merits of the controversy now pending and being prosecuted in good faith between the same parties in the state court. If the Chicago & .Erie Company has done nothing which entitles the Wabash Company to the injunction which it prayed for and obtained in the state court, then the Chicago & Erie Company can make its defense there. Both parties being citizens of the state of Indiana, the state court was the only tribunal to which the Wabash Company could'appeal for the protection of its rights under any express or implied contract which had sprung up between September 1st and September 22d between the parties, which was after the Chicago & Erie Company had taken possession or assumed control; and we submit that no summary process from this court ought to be employed to cut down any such rights, in case they do exist. And especially is that true when such rights are asserted in good faith, and supported .by evidence strong enough to induce the state court, upon a full hearing, to grant the relief prayed for. The cases cited and relied upon by petitioner are those in which the parties in possession set up no claim of right through anything arising subsequent to the sale.
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“Woods, J.,
(after stating the facts.) The objection is made at the threshold that the petitioner cannot have the assistance of the court in the way asked to obtain possession, because it was not the purchaser, but comes as the grantee of the purchasers at the master-commissioner’s sale. The authorities cited in support of this objection do not fully support it. In Van Hook v. Throckmorton, 8 Paige, 33, the court says:
“There is ho settled practice of this court entitling a subsequent purchaser from a purchaser at a master’s sale as a matter of right to the .assistance of the court to obtain possession of the premises which his grantor had purchased under the decree. ”
And in People v. Grant, 45 Cal. 97, and Stanley v. Sullivan, 71 Wis. 585, 37 N. W. Rep. 801, the question was one of statutory construction, and' the decisions have no general application. But, whatever the general .rule in that respect is, it is not controlling in the present case; because, by the order of September 1st, this court recognized, and, in effect, declared; a substitution of the Chicago & Erie Company in the place of the purchasers at the sale, in respect both to rights and to duties and'liabili’ties, That order, which was made with the consent of par-lies, besides directing the receiver to deliver possession “to the said Chicago & Erie Railroad Company, as the grantee, and assignee of said'purchasers at .the commissioner’s, sale, .had herein,” contains this clause:
[659]*659“And the court now reserves the right to resume the possession oí said railroad and other property in case the said Chicago & Erie Railroad Company shall hereafter fail or refuse, upon the order of the court, to pay into this court any money allowances for costs, expenses of the trust, or for claims against said receiver; and for that purpose the court retains jurisdiction of the said railroad and other property.”
I f this did not make the Chicago & Erie Company a parly to the cause within the meaning of equity rule 9, which authorizes the issue of the writ of assistance for the use of a party, it certainly entitles it to the benefit of rule 10, whereby it is declared that—
“Every person not being a party in any cause, who has obtained an order, or in whose favor an order shall have been made, shall be enabled to enforce obedience to such order by the same process as if he were a party to the cause; and every person not being a party in any cause, against whom obedience to any order of the court may be enforced, shall be liable to the same process for enforcing obedience to such order as if he were a party to the cause.”
The petitioner is therefore entitled to the writ, if the facts justify the granting of it.
The answer of the respondent has in it the proposition that, by reason of the conduct of the receiver “as agent and representative of the mortgagees and bondholders,” his receipt of rent from the Wabash Company, and other facts alleged, “a general tenancy was created between the mortgagees and bondholders, of the one part, and the Wabash Railroad Company, of the other part.” In respect to this it is enough to say that the receiver did not make, or attempt to make, any arrangement which should extend beyond the term of the receivership. Without the consent of the court, I suppose, he could not have done so. The fact is that, during the possession of the receiver, he complied with the tonus of the contract of June 1, 1887, in so far as they were obligatory upon the Chicago & Atlantic Company, so that there was, by-reason of the receivership, no breach of the contract in that behalf; and if, instead of a sale, the suit had ended in the restoration of control to the Chicago & Atlantic Company, the relation between the two companies in respect to that contract would have been the same — the contract would have been just as binding upon them — as if there had been no receivership; and so, in the language of the answer, it remained true, until the receiver turned the property over to the petitioner that “the receiver and the Wabash Company entered upon the joint use and occupation of tins railroad; * * * the receiver holding under his appointment, as aforesaid, and the Wabash Railroad Company holding and occupying * * * under the aforesaid contract of lease.” That contract, whether it created a tenancy or an easemept, having been made pending the suit, the. rights of the Wabash Company under it were necessarily held subject, to the decree, as much as if that company had been a party to the action. rl?he suggestion at the argument that the contract was made before the filing of ibe cross-bill of Bippus is immaterial, because the bill of the Farmers’ Loan <fc Trust Company sought a foreclosure of both mortgages, and consequently there was when that contract was made, in respect to both mortgages, a Im jjeudens as complete, 1 suppose, as if the' [660]*660cross-bill had also been pending. Besides, the decree upon the first mortgage alone is a complete foreclosure of the rights of parties claiming under contracts made with the mortgagor after the' commencement of the suit to foreclose that mortgage. When, therefore, the purchasers at the sale, in accordance with the terms of the decree in that respect, gave notice to the master commissioner of their election “to abandon and disclaim” the contract of June 1, 1887, with Ashley and Talmage, and all supplemental agreements, the result was that, immediately upon the surrender of possession by the receiver, all right of possession in the Wabash Company under that contract ceased; and, if that company has any ground for rightful resistance to the petitioner’s claim for full and exclusive possession, it must be because, by conduct or by contract, the petitioner has conferred that right since it took possession at the hand of the receiver.
In respect to this point the attorneys for the Wabash Company, in a brief filed since the argument, say:
“ On the foregoing facts, the first question presented is whether this court ought to attempt, in this proceeding, to determine the merits of the controversy now pending and being prosecuted in good faith between the same parties in the state court. If the Chicago & .Erie Company has done nothing which entitles the Wabash Company to the injunction which it prayed for and obtained in the state court, then the Chicago & Erie Company can make its defense there. Both parties being citizens of the state of Indiana, the state court was the only tribunal to which the Wabash Company could'appeal for the protection of its rights under any express or implied contract which had sprung up between September 1st and September 22d between the parties, which was after the Chicago & Erie Company had taken possession or assumed control; and we submit that no summary process from this court ought to be employed to cut down any such rights, in case they do exist. And especially is that true when such rights are asserted in good faith, and supported .by evidence strong enough to induce the state court, upon a full hearing, to grant the relief prayed for. The cases cited and relied upon by petitioner are those in which the parties in possession set up no claim of right through anything arising subsequent to the sale. But lierq that claim is made, and it is made in good faith, and upon evidence sufficient to cause the state court to issue an injunction, and our contention is that the question whether or not that injunction was rightfully or wrongfully issued is an issue which ought to be left to the tribunal in which it is pending. We rely on the rule as stated in Barton v. Beatty, 28 N. J. Eq. 412, in which it was said: ‘ The exercise of the power of putting a purchaser in possession of land sold under the decree of this court rests in the discretion of the court. It will never be exercised in a case of doubt, nor, under color of its exercise, will a question of legal title be tried or decided.’ Schenck v. Conover, 18 N. J. Eq. 227; Vanmeter v. Borden, 25 N. J. Eq. 414. The court will not in this summary way settle contested legal rights. Thomas v. De Baum, 14 N. J. Eq. 41. A writ of assistance is awarded in execution of a'final decree. Having decreed a sale and conveyance of land, it is necessary, in order to give the. purchaser the full t>enefit of his purchase, to put him in possession. This the court will do as a full enforcement of its judgment, and as incident to the relief given by. its decree. But if, subsequent to the sale, the purchaser confers new rights on the person in possession, or his conduct leaves it doubtful whether he has not given the person in possession a right to hold the land, such fact takes away the power of this court to deliver possession. In such a ease the ques[661]*661tion would be, has the person in possession a right to hold the land by matter arising subsequent to the salo? and not, is a writ oí assistance necessary to the complete enforcement of the decree? That question must bo tried in another tribunal. In this case the person in possession puts in evidence certain facts tending to show the creation of a tenancy at will subsequent to the sale. The petitioner attempts to meet the case thus made by showing that no tenancy of any kind was created. Perhaps the evidence of each, standing alone, is sufficient to make out a prima facie case. It is obvious at a glance that'the question thus raised is one not proper to be tried in this court. The application must therefore be dismissed. To the same effect, see City of San Jose v. Fulton, 45 Cal. 316. ”
It is evident that in the case referred to there was conflict in the evidence, and that on each side it was “sufficient to make out a prima facie, case.” There is no essential conflict of that kind here. The facts are as certain as if embodied in a special verdict or finding, and it remains only to deduce the proper legal conclusion, — a duty which would belong to the court even if the question wore being tried in another tribunal with the aid of a jury; and in respect to that conclusion it seems to me that íbero is little or no room for doubt what it ought to be. There is nothing in the evidence adduced here that shows the ground upon which the Wabash circuit court granted its restraining order, nor that that court passed upon the exact question presented here; and, if it did, it would nevertheless be the duty of this court to act upon the matter according to its own judgment, because the primary jurisdiction is here, incident to the procedure of foreclosure and sale in the principal case, and upon the exercise of that .jurisdiction the petitioner has the right to insist, notwithstanding the action had in the state court, and notwithstanding its appearance in that court, to resist that action. The powers and remedies of this court would be lame and inefficient indeed if they did not extend to situations like this, and if their exercise could be intercepted or cut off by applications to other courts.
The Indiana statute (Revision 1881, §§ 5207, 5208) provides that “estates at will may be determined by one month's notice,” but that “a tenancy at will cannot arise or be created without an express contract; and all general tenancies in which the premises are occupied by the consent, either express or constructive, of the landlord, shall be deemed tenancies from year to year,” which are determinable by “three months’ notice given to the tenant prior to the expiration of the year.” On lheo assumption that the occupation and use of the road by the Wabash Company in the manner shown constitutes a tenancy and estate in the sense of these statutes, it is now insisted that the Wabash Company holds as a general tenant of the Chicago & Erie Company. Whether the contract with Ashley and Tal mage constituted, and whether any occupation and use of the road in accordance with the terms of that contract could constitute, a tenancy, seems to me quite doubtful. The right conferred thereby upon the “lessee,” so-called, was simply to run its trains in charge of its own employes over the road of the other party, (the road itself being in the charge of tins employes of the owner,) which by the contract was bound to furnish, [662]*662and did furnish, to the Wabash Company the requisite fuel, water, ' use of side tracks, and other facilities, including telegraph service, for the moving of its trains. A guest or boarder occupying a room for the time being, it may be exclusively, does not become a tenant in any proper sense of the word; and the right conferred by the contract with Ashley and Talmage seems to me to be rather in the nature of an easement; and the position of the Wabash Company since the Chicago & Erie Company took possession has been perhaps more like that of a licensee. But it is not necessary to define exactly the relation of the par-' ties under that contract. It was treated in argument as a tenancy, and let it be so regarded. Whatever it was, by force of the decree of foreclosure and of the notice of “abandonment and disclaimer,” given by the purchasers to the master commissioner on the day of sale, the rights of the respondent were terminated; and, aside from considerations of public policy against any sudden interruption of transportation and travel, the Chicago & Erie Company, upon taking possession, might have turned its switches, and refused to permit another locomotive or car of the Wabash Company to come upon its tracks; but it was not bound, in order to save its rights, to take so peremptory a course. It was enough that it sent immediate notice, both by telegraph and letter, to the Wabash Company of its purpose to abide by the disclaimer which Coster and Thomas had declared, and that in the subsequent correspondence with the officers of the Wabash Company this position was consistently maintained, and timely notice given that the Wabash Company at a time stated should cease entirely the use of the Chicago & Atlantic road. , There was at no time cause for, nor was there in fact, on the part of the Wabash Company, any misunderstanding of the attitude of the Chicago & Erie Company; and if, under the circumstances, new rights have arisen in the nature of a general tenancy, it is because the law, from the mere fact of the continued joint use of the road conformably to the terms of the contract under which that use had begun, compels the inference of an intention contrary not only to the understanding of both parties, but to the expressed intention of the party against whose.interests the-inference is asserted. No such legal inference is necessary, and to say that there can be in this case an inference of fact, or of mixed law and fact, to the effect that a new tenancy or contract of any kind was intended to be created, instead of being a fair or reasonable deduction from it, would be a distortion of the evidence.
If there was not a strict compliance with the rule' that there should be a formal demand for compliance with the order or decree of the court before applying for a writ , of assistance, the respondent may be said, upon the facts shown, to have waived the objection. The prayer of the petition is therefore granted, and unless within a reasonable time (to be fixed on motion) the Wabash Company shall voluntarily withdraw its locomotives and cars, and cease to use the petitioner’s road, the writ of assistance will issue, and the respondent will be enjoined, as prayed.