By the Court,

We think that the Court had power to amend the motion, for the furtherance of justice. It is objected that an appeal does not lie, but that this case should have come here by certiorari. The case of Miller Irvin vs. Real Estate Bank, ante, and other cases in this Court, settle the right of appeal or writ of error, where there is a final decision or judgment.

But, the mere describing of Etter as lessee, in the motion, or the styling him such in the entry of the clerk, does not prove him such. Smith purchased all the right, title, and interest, which Kopman had in and to the premises, at the time of the rendition of the judgment, subject to all the older judgments or incumbrances which had, before that time, been created on the estate. See our Revised Statutes, titles “ Judgments,” “Executions,” “Liens” and “ Mortgages.” Smith then took no other nor greater estate than Kopman had at the time of the rendition of judgment. The 68th sec., ch. 60, Rev. St., provides, that “if, on the sale of any real estate, or any improvement on the public lands of the United States^ by any sheriff or other officer, under any execution, the defendant or his lessee shall refuse to give the purchaser possession of such real estate or improvement, it shall be the duty of the Circuit Court, on the application of the purchaser, to make an order, directing the sheriff or other officer to put the purchaser in possession of such real estate or improvement; which order shall be executed by such officer without delay; and, if necessary, he may call to his assistance the power of the county, in order to carry such order into effect.” The right here given by this summary proceeding, is against the defendant or his lessee, and would not, of course, lie against a person who holds adversely. This section, we apprehend, must be so construed as not to give to the purchaser a right to determine a lease, which did not exist in the defendant himself. If Etter’s lease was a lease for years, created before the rendition of judgment,' Kopman had no right to determine that lease at will; and, as Smith only purchased such right as Kopman had, he, of course, bought subject to such lease. This opinion receives more force, when we take into consideration that lease-hold interests for years are the subject of sheriffs’ sales. See ch. 60, Rev. St., sec's 36, 54, and 93.

This remedy, it is presumed, does not lie against strangers who hold adversely. It was certainly, therefore, the duty of the Circuit Court to require proof that Etter was the lessee of Kopman, and that he refused to deliver possession.. If, on proof of service of a notice to quit, it; should appear that the tenant was tenant at wiU, or that his lease had expired, and that he refused to deliver possession, the purchaser would have a right to the order. But, until such proof was made, such order was premature. Judgment reversed.