54 N.J.L. 284 | N.J. | 1892
The opinion of the court was delivered by
On June 1st, 1887, the plaintiff, Heileman, recovered judgment in this court against Francis Frey and his tenant, Godhardt Eisner, in an action of ejectment for the
Upon a writ of error sued out by the defendants, this judgment was reversed by the Court of Errors in March, 1890, and subsequently, the defendant Frey having died, leaving Elizabeth Frey as his devisee, she was admitted as a party to the suit. She now prays a writ of restitution to restore to her the possession of the premises, together with the issues thereof from the time of the entry under the erroneous judgment.
Shoemaker opposes this prayer upon the ground that, besides the title under which the erroneous judgment was rendered, he holds also a tax title vesting him with a right of possession, and that- other suits are pending, both at law and in equity, between himself and Elizabeth Frey, which involve the title to the property.
These matters are not such as can now be considered. The present application rests upon these facts exclusively : That, by virtue of an erroneous judgment of this court, the plaintiff deprived the defendant of the possession and profits of the land, and that such judgment has been annulled by an appellate tribunal, which has'Ordered that the defendant should be restored to all that he lost by the judgment. Mere obedience to such order requires us to grant the application of the defendant.
If, upon the retrial of this action, the plaintiff’s title involved in this suit shall prevail, his remedy for mesne profits will embrace the whole period up to the date of his final recovery ; if he has other title, he may put it in the regular course of litigation, with the like result; if he has a right to equitable relief, he must seek it in chancery.
The defendant is entitled to a writ of restitution, and it may issue to the effect indicated in Arrowsmith v. Vanarsdale, 1 Zab. 471, 473.
