¶1I concur. If, on the payment by Hidden of the amount mentioned in the decree of the 4th of June, 1870, Jordan, in obedience to that decree, had conveyed the legal title to Hidden, then (even had the decree not contained the clause requiring the delivery of the possession to Hidden) the latter would have been entitled to recover the possession in an action of ejectment, together with damages by way of mesne profits from the date of the conveyance to the execution of the judgment in ejectment. Inasmuch as the decree provided for the surrender of the possession by Jordan, and such surrender, in fact, took place after the reversal of the order denying a writ of assistance, the plaintiff is entitled to recover mesne profits for the period during which he was wrongfully kept out of possession by Jordan and those holding under him, after the conveyance to him of the legal title. Plaintiff’s right to mesne profits did *188not depend upon the recovery of the possession in an action at law, but was sufficiently made out—as to trespass for mesne profits after the decree and the execution of the deed under it— by proving the existence of the decree, and the proceedings under it, which placed the legal title in Mm, and which, at the same time, directed that he be placed in possession, the last provision securing to him all that he could have recovered in ejectment. Every reason which would make a recovery in ejectment evidence of his right to a judgment for mesne profits for a period during which the possession should be withheld after such recovery, applies to a decree which provides for a transfer of the legal title to him, and, at the same time, accords to him the possession.
¶2If it be suggested that the case does not show that the legal title has as yet been conveyed to Hidden by Jordan, the response is ready. The decree does not in terms provide, that if, on payment of the money by Hidden, Jordan shall refuse to execute the deed, the decree itself shall operate as a transfer of the legal title, but I think it may fairly be so construed. The decree requires a deed by Jordan, but neither Hidden’s possession nor his right of possession is made to depend upon the execution of the deed. On the contrary, the District Court declared: “ Upon the payment of the money aforesaid into Court by the plaintiff, for the use of defendant, as aforesaid, the possession of said premises, with the tenements, hereditaments, and appurtenances, shall he forthwith surrendered and delivered up to said plaintiff Hidden.” Heading the decree as a whole, it is apparent that it was intended that, upon the payment of the money, Hidden should become the legal owner.
¶3The decree, and the payment under it, placed the legal title in plaintiff, and the court of equity, instead of turning him over to his action at law to recover the possession, decreed that he be put in possession. But whether the present can be called technically an action of “ trespass for mesne profits ” or not, it is an action to recover damages for the wrongful withholding after judgment of the possession of lands of which plaintiff has been adjudicated the owner, legal and equitable, and of which he has been placed in possession by a competent court. I entertain no doubt that plaintiff is entitled to recover as damages *189the value of the use and occupation for the period between the date when the judgment took effect, by the payment of the sum therein mentioned, and its complete execution by the delivery of the possession to him.
¶4McKee, J., dissented.