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.