Abraham Clark Freeman John Proffatt.

The American decisions: cases of general value and authority ..., Volume 51 online

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it, whether between parties or as against strangers to the action: JJall v.
Hall, 47 L. J. Ch. 681, following Be Jfolden, cited in Seton's Decrees, Judg-
ments, and Orders, p. 1562, but it is of eztentive use in the United States.
The definition of Abbott is not broad enough to coverall of the uses for which
it is applied, although it is sufficient to give a general idea of its nature and
use. This writ is a summary proceeding: City of San Josev, FuUon, 45 CaL
31G; and its object is to put a person who purchases at judicial sale into the
possession of the premises: J<mtB v. Hooper^ 50 Miss. 510. It is proper only
where a party concluded by the proceedings refuses to give up possession on
request: ffotcard v. Bondt 42 Mich. 131; and it can only issue against the
defendants in the suit and parties holding under them, who are bound by the
decree: Burton v. Lies, 21 Cal. 87. Consequently, it will not be granted
against one not a party to the record, who is claiming possession adversely
and independently of the parties to the record, and who can not appear and
defend his rights before the court of strict right: Odpeke v. MU* ^ HoH"
con B, B, Co,f 11 Wis. 454; nor against a person in possession of premisoe
sold under a decree rendered in a suit to which he was not a party, where
his i>o83(;S8ion began before the commencement of the suit; for not being a
party nor coming in pendente lite, his rights are in no way affected by the
suit, and will not be adjudged in a summary manner upon a motion for e
writ: Oilcrefst v. AfagiU, 37 HI. 300. A question of legal title will not bs



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Jan. 1849.] Wilson u Polk. 16S

tried on an application for the writ, nor will it be granted in cases of donbt:
Barton v. BecUty, 28 K. J. £q. 412; nor will qnestions of equity between
tho plaintiff and persons i!i possession of the land, not parties, be litigated
on motion for it: Hendenon v. McTacher^ 45 CaL 647. If upon the applica- .
tion by the grantee of a purchaser it appeared that the defendants had ao*
quired, or claimed to have acquired, a new right to possession from the pur-
c'.iascr, the writ should be denied, as " the court on an application by hia
grantee for a writ of assistance will not undertake to settle the legal or equi-
table rights of the parties. They are matters which ought to be adjudicated
in a regular suit; they should not be determined upon affidavits taken in a
collateral proceeding. It is evident that the appellants have 8ome righta
under the contracts of sale, and great injustice might be done them were they
to be tamed out of possession before those rights have been adjudicated:"
Laxfjlttj V. VolL, 54 Cai. 435. So, also, if the rights of the parties have been
changed since the decree and sale by reason of any agreement between the
defendant and the purchaser at the sale, or "h^B cestui que trust, or if it be
alleged that such is the case and the allegation is controverted, or if the sher-
iff's grantee holds the title in trust for another, and such other has contracted
with the defendant to sell him the land conveyed by the sheriff's deed, or if
it be alleged that such is the fact and a real controversy exists in relation to
it, then, in any such case, the writ should not issue: City of San Jose v. Fulton, 45
Cal. 316. And where, on a motion for the writ, the counsel for the defend-
int alleged that he had assigned the house and goods for a valuable considera-
tion to one H., it was ordered that H. come in and be examined pro interesae
MO, and the counsel for defendant give notice to the plaintiff within two
days of H.'s abode, and on affidavit that H. could not be found to bo served
with the lost order, a writ of assistance was issued: Bird v. LUUehalts (]&
March. 1743), 3 Swans. 300, n.

A purchaser may obtain this writ if he is kept out of the possession of
property sold by the court: WUson v. Angus and Toynbee v. Ducknell, both
cited in Seton's Decrees, Judgments, and Orders, 1563^ And a sheriff may
coDvey to the assignee of a purchaser of lands sold on execution at law or in
equity, who would then be entitled to the writ: Ehings v. Murray, 29 N. J.
I^. 388. And a purchaser at a judicial sale under a judgment directing f Jie
purcliaser to be put into possession has a right. to this writ, if necessary; and
this notwithstanding the death of the plaintiff, after judgment and bef ivre
Bale, and in such a case a revival of the action is not necessary: Lynde v.
O'DonneU, 12 Abb. Pr. 286. It will also be granted in aid of the pursuivant
if a proper case be made for it: MaJioney v. Ayltoard, 1 Hogan, 474. And in
Adand v. Atwell, 3 Swans. 499, note, writs of prohibition and assistance were
granted to prevent a prebendary from committing waste on his prebend. It
may also be issued to put a receiver in possession: A. O, v. Tastett, cit-ed in
Seton's Decrees, Judgments, and Orders, 441; as where the defendant locked
op his goods and absconded with the key: Casxt de la Borde v. Othon, 23
W. Pb. 110. And a court will put a receiver in possession in a summary way,
tod will order the tenants to attorn to him, and grant the writ without first
awarding an injunction for the possession, which is the usual way: Sharpe v.
^^fXfUr^ 3 P. Wms. 379, note. This writ, however, is only granted in aid of the
Krvice of a writ or in execution of the process of the court. It will not be
panted to aid a receiver in levying a distress for rent: Robinson v. Wynne,
Sau. a Sc. 88; Anonymous, 1 Hogan, 207; WhiU v. Phibbs, Sau. & Sc. 88. Nor
^ul it U g«aatad to aid the sheriff in executing an attachment directed to him»
viucti Mmed against a tenant of the court for non-payment of rent: Mtagkef



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154 Wilson v. Polk, [Miss.

T. Mewjher, 1 Jonea & L. 31. Thia writ is an inddent to an injunction or to
a sequestration, and is issned whenever it becomes necessary to enforce either:
Commonwealth ex rH. SmlUi v. Dieffenhach^ 3 Grant's Cas. 368. In England
it was held that such a writ would not issue to sequestrators: Browne v. Cuffe^
1 Hogau, 145. But it was said in 1 Barbour's Ch. Pr. 72, that if sequestra-
tors were obstructed in the performance of their duty such writ would issae.
The purchaser at a tax sale made in pursuance of the fifth section of the act
of April 3, 1858, for the collection of delinquent taxes in Sacramento, CaL»
is entitled to the writ against the person in possession of the premise**, not-
withstanding the existence of such fiduciary relations between the parlies at
the time of the sale that n court of equity would hold the purchaser a trustee
for the i)08sessor in the purchase on the ground of constructive fraud: M'dU
Y. TuJl-ey, 22 Cal. 373; compare Pexyj^A v. Doe, 31 Id. 220. But such a writ
will not iBsue in favor of one who was the purchaser from one who has re-
ceived a sherifiTs deed for land sold under a judgment for delinquent taxes:
PeopU V. OtomU 45 Id. 97; C\iy of San Jo9e v. FulUm, Id. 316. And this writ
is discretionary, and will not be granted except in a clear case; consequently
it was refuse<l because the sale under the execution was not sufficiently ad-
vertised in Vanmeter v. Borden, 25 N. J. Eq. 414.

' * The most familiar instance of its [the writ of assistance] use is where land
has been sold under a decree foreclosing a mortgage:** Jones v. Hooper^ 50
Miss. 510. And Kent, chancellor, in the leading case of Kershaw v. Thomp-
son, 4 Johns. Ch. 609, discussing the power of a court of chancery to issue
the writ on a foreclosure and sale of mortgaged premises, and a refusal of the
defendant or one coming in under him pendente lUe to give them up, says: ** 1
have examlDod this point with a disposition not to enlarge the established
jurisdiction of the court, but with an anxiety at the same time to afford the
suitor tlie adequate and perfect relief to which he may be justly entitled. It
does not appear to consist with sound principle that the court which has ex-
clusive authority to foreclose the equity of redemption of a mortgagor, and
can call all the parties in interest before it, and decree a sale of the mortgaged
premises, should not be able even t9 put the purchaser into possession against
one of the very parties to the suit, and who is bound by the decree. When
the court has obtained lawful jurisdiction of a case, and has investigated and
decided upon its merits, it is not sufficient for the ends of justice merely to
declare the right without affording the remedy. / If it was to be understood
that after a decree and sale of mortgaged premises, the mortgagor, or other
party to the suit, or, perhaps, those who have been let into the possession by
the mortgagor, pendente lite, could withhold the possession in defiance of the
authority of this court, and compel the purchaser to resort to a court of law,
I apprehend that the delay and expense and inconvenience of such a course
of proceeding would greatly impair the value and diminish the results of sales
under a decree." Prior to the passage of the act of May 18, 1861, judges of
courts had no power to issue writs of assistance to place the purchaser of
property in possession under a decree of foreclosure, in California: Chapman
V. Thoifiburg, 23 Cah 48. But it is settled beyond doubt that this is the ap-
propriate remedy to place a purchaser of mortgaged premises under a decree
of foreclosure in possession as against parties who are bound by the decree,
and who refuse to surrender possession pursuant to its directions: Terrell v.
Allison, 21 Wall 289; Montgomery v. TuU, 11 Cal. 190; Montgomery y. Mid-
dlemisB, 21 Id. 103; BeaUy v. De Forrest, 27 N. J. Eq. 482; Ludlow v. Lansing^
Hopk. Ch. 264; Bell v. BirdsaU, 19 How. Pr. 491; New York Life Ins. A
Trust Co. V. Rand, 8 How. Pr. 35; S. C, affirmed. Id. 352; Diggle v. Boul



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Jan. 1849.] Wilson u Polk. 155

<l€n^ 4S Wis. 477; and the purchaser can Dot be denied the writ to pat him in
possession, where he is kept out under a claim that the mortgagor had no title
when he made the mortgage: Bowei-y Savings Bank v. FosUr, 11 Weekly
Digest, 403; and a tenant in possession, who lias been made a party, is bound
to attorn to the purchaser at foreclosure sale or be removed by the writ, not-
witlistandint; he claims under an unexpired lease of several years, executed by
the mortgagor several years before the date of the mortgage foreclosed: Lovett
V. German Rt formed Church, 9 How. Pr. 220. •

lu BUutvfU V. Smil/i, 7 C. £. Green, 31, the writ of assistance was termed
in "eTtraordinary i-elief;" but Beardsley, C. J., in BeaUy v. De Forrest, 27
X. J. Eq. 4S2, referring to this language, said he saw no reason so to regard
it Bat the power of chancery to issue the writ extends only against those
persons who are parties to the foreclosure suit, or who have come into posses-
noa of the premises subsequent to the commencement of the suit, or with the
assent of those who are such parties: Boynton y. Jackway, 10 Paige, 307;
although see N. Y, Lift Ins, Co, v. Rand, 8 How. Pr. 35; S. C. affirmed. Id. 352.
And a person who, pending an action for the foreclosure of a mortgage, and
with notice of its pendency, purchases from one of the defendants therein a
portion of the mortgaged premises, occupies the same position as his grantor
in reference to the issuance of the writ: Montgomery v. Byera, 21 Cal. 107;
bat it will not issue against a purchaser who is not a party, and who has no
notice, actual or constructive, of the pendency of the suit: Harlan v. Rack-
<r6y, 24 Id. 561; and it was held, in Van Hook v. Throckmorton, 8 Paige, 33,
that it would not issue to turn a person out of possession of mortgaged prem-
ises, though he went into possession pendente lite, unless he went in under or
by permission of one of the parties to the suit; nor will it issue to remove
persons who go into possession after the purchaser has received his deed and
conveyed the premises to another: Bell v. Birdaall, 19 How. Pr. 491. The
©wner of the property mortgaged, whether the original mortgagor or not, is
an indispensable party in a suit for foreclosure; a decree, if he is not made a
party, will not bind him or those claiming under him, and the purchaser at
•Bch sale is not entitled to the writ: Terrell v. Allison, 21 Wall. 289. And a
inant of the mortgagor, or a person who has gone into possession of the
mortgaged premises subsequent to the mortgage but before the commence-
neat of the foreclosure suit, must be made a party to the suit to enable the
«oart to turn him out of possession by a writ of assistance upon the applica-
tion of the purchaser under the decree, although the tenant had no defense,
tnd might have been turned out of possession by an ejectment suit brought
hy the purchaser: Boynton v. Jackway, 10 P;uge, 307; and the right to
turn out of possession by this writ does not extend to the case of the wife of
the mortgagor, not a party to the suit, claiming under color of title acquired
from one of the defendants before suit brought, although such title may be
void or inoperative by statute: TJtompson v. Smith, 1 Dill. 458. And where,
After the death of the mortgagor, the mortgagee commenced a suit to foreclose,
Bttking the executors parties, but not the widow, the mortgagee, on purchas-
ing at the foreclosure sale, is not entitled to the writ as against the widow,
vho retains possession of a portion of the premises, which on demand she re-
fwes to surrender: Burton v. Lies, 21 Cal. 87.

Whore the mortgagor and his wife move to set aside the writ on the
ETOond that they moved upon and occupied the premises as a homestead
^ore the execution of the mortgage by the husband, the motion will be
tienied where it appears that the mortgage was given for the pnrohaM
^'Hmey of the {nremises, even thon^ the wife was not a party to the fore-



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166 Wilson u Polk. [Miaa.

closure: Shnner ▼. BeaUy, 16 Cal. 156. A party who foredoaes a mortgage-
given by one partner on and obtains a sheriiTs deed for an nndiyidod interest,
in the partnership projierty, without making the other partner a party, is not
entitled to the writ as against a receiver who has been appointed by the
court at the instance of the other partner in an action commenced by him to-
dissolve the partnership and have the properly sold to pay the debts: Avien"
reUh V. Hessenauer, 43 Cal. 356. A purchaser on foreclosure can not demancl
possession until the commissioner's report of the sale is confirmed; and Wk-
demand and refusal made before Mrill not justify the writ after confirmation, if
there was uo demand and refusal after the confirmation: Howard v. Bond^
42 Mich. 131. Where proceedings by writ of assistance on foreclosure were-
taken against the wife, leave being taken to discontinue as against the has-
band, the objection that the papers were wrongfully entitled in the names of
both defendants was held a mere technicality, especially as it was not clear
from the record whether the order of discontinuance had been entered: IToioe
V. LeTnon, 47 Mich. 544. And matter set up in defense of a motion can not be-
received to affect the decree determining the rights of the defendants:
Id. And it was held in Rawiter v. Hamilton^ 51 How. Pr. 297, that where the
writ was issued upon notice in favor of a purchaser under a mortgage fore-
closure suit against a tenant in possession of the mortgaged premises, and wa»
executed by putting the purchaser in possession, it was conclusive upon the
tenant and purchaser as to the right of possession. If the tenant hod any
defense to it, it should have been presented on the hearing of the motion
for the writ. The question whether the writ was properly awarded can not
be reviewed in a collateral action in another court.

It is the duty of the sheriff, in the execution of the writ, to place the
purchaser on foreclosure of a mortgage of an estate in common in the posses-
sion of every part and parcel of the land jointly with the other tenants in
common, but in the execution of the writ the sheriff can not remove any park
of the tenants in common who hold under a title indepehdent of him through
whom the purchaser claims: TevU v. Hicks, 38 Cal. 234; but an officer is
protected in executing a writ fair upon its face, even though it was irr^^a.
larly issued, and the defendant would be entitled to have the same set aside
on motion: Arrtx v. Broadhead, 19 Hun, 269; and the sheriff can not excnae
himself from executing a writ lawfully issued, because the defendant in the
writ claims to hold the possession under a party having a title older than the
title of the claimant in the writ: Staie ex rel. Chappell v. Giles, 10 Wis. 101;^
but the writ will not justify an officer in putting out of possession a perscm^
who was neither i* party to the suit nor named in the writ: Brush v. Foider,
36 HL 53. In an action against the sheriff for refusing to execute the writ
by putting him in possession of land purchased by him at a foreclosure sale,
the complainant should show the parties to the foreclosure suit and the tena
at which it was entered, otherwise it does not state a cause of action; but it
is not necessary in such a case that the complainant should set forth all the
facts that give the circuit court jurisdiction of the foreclosure suit: Loomis v-
Wheeler, 18 Wis. 524.

Wo will now proceed to discuss the practice on issuing writs of assistance..
These questions are to a great extent regulated by the statutes of the several
states; but there are interesting matters relating to this subject that exist
independent of statutes. At the common law it was said that all process
was to is>sue out in course before any injunction or writ of assistance to pnt
the party in possession would be granted: VenahUs v. Foyle, Rep. Ch.
179; that after a writ of execution of a decree and an attachment served on.



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Jan. 1849.] Wilson v. Polk. 167

the dflfendant, the plaintiff might have an injunction to the defendant to
delifer up ponessioo, and then if he refused, a writ of assistance issaed:
3tnVe^ v. ffawldet 3 Atk. 275; and an injunction to deliver possession of
land would he decreed as a ground for obtaining the writ: Huguenin v. BoMdqf^
ISVes. ISa And it was held in Dove v. Dove, 1 Dick. 619; S. C, 1 Bro. C.
0. 175, that the following steps were requisite to the issuance of a writ of
•nistince: first, service of a writ of excKsution, of an order to deliver, a de-
naad, and the issuing of an attachment for disobeying; next, an injunction
to enjoiu the defendants to deliver posse&sion, and upon proof of service of
the injunction and its not being obeyed, upon motion without notice, and an
Affidavit of the facts, the writ would be ordered. In Alabama, also, it was
iield, that if the possession was withheld, the court would direct a writ of
pOMssion to issue, and if this order was not obeyed, an injunction would be
{noted, and if that was not obeyed, the writ of assistance would issue as a
instterof course: CreiglUcn v. Painfy 2 Ala. 158; and in Kershaw v. Tkomp-
•Wiy 4 Johns, Ch. 600, it was said, that if the defendant disobey an order to
deliver up possession, on injunction issued of course, on affidavit of service of
the order, etc., to enjoin the defendant to deliver possession; and on proof of
•erriceof the injunction and a refusal of the party to comply, a writ of assist-
ance issued, of course, to the sheriff. But the tendency of the courts has
been to dispense with these formalities and to issue the writ immediately on
proof of demand of possession and refusal. In Valentine v. TeUer, Hopk. Ch.
480, it was held that the writ was, in ordinary cases, the first and only pro-
ce$t for giving possession of land under an adjudication of the court. The
ooort, in discussing the course mentioned in Kershaw v. Thompson, supra, said:
"This circuity seems unnecessary; at least, it is not necessary, in the ordi-
nary case of a proceeding for possession, against a party who was a defendant
in the suit. When once the principle is established that this court is to give
pcs8<^ion, that possession should be given by the most direct, simple, and
efficacious means, and the process of this court should be in effect the same
▼ith the habere facias possessionem at law."

On a decree setting asiile a conveyance and demanding a reconveyance, a
motion for a writ of assistance, made upon the following documents, should
be granted: Notice of motion and affidavit of personal service of a copy of
the same and of the other papers; a certified copy of the decree; the certifi-
cate of enrollment of the decree; deed of reconveyance, approved by a mas-
ter; affidavit showing a demand of possession and execution of a deed of
^conveyance and refusal to do either: Devaucene v. Devaucene, 1 Edw. Ch.
272. Under the California system, the order to deliver possession should be
first made, unless a direction to that effect is contained in the decree, and if,
ypon its service, that is disregarded, the court can at once direct the writ to
issue; but if the delivery of possession to the purchaser is directed by the
^fierce, no preliminary order will be requisite, but upon proof of disobedience
to tlie decree, the party will be entitled, as a matter of course, to the writ as
■fiWMt the defendant in the suit: Montgomery \% TtUt, 11 Cal. 190; but in
that state it has been held that the purchaser under a decree of foreclosure is
entitled to the writ without any preliminary order, although the decree con-
taiued no direction to deliver the possession; that all that is necessary is to
''^niiah the court proper evidence of a presentation of the deed to the defend-
^^ or those cUuming under him, a demand of the possession of them, and
*beir refusal to surrender it: Montgomery \, Middlemiss, 21 Id 103; Moftl-
ywjifry V. Uyers, Id. 107. In Mississippi, all that is necessary is that the
^^ttplatnant should file with the clerk a petition and proof of service of ths



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158 Wilson v. Polk. [Mias.

order of the chancellor upon the defendant and demand of poesesnon and
refasal to surrender it: ChisuxUd v. Simmons, 50 Miss. 123; compare Jones v.
Hooper, Id. 510. No notice of the application for the writ is necessary, but
it may be made ex parte : New York Life and Trust Co. v. Rand, 8 How. Pr.
35; S. C, affirmed, Id. 352; IJarvey v. Morton, 39 Miss, 608; New York lAfe
I'M. and Trust Co. v. Cutler, 9 How. Pr. 407; Lynde v. O'DonneU, 12 Abb.
P. . 286, Dove v. Dove, 1 Dick. 619; S. C, 1 Bro. C. C. 375; Cazet de la
P*adje V. Othon, 23 W. R. 110. In Mississippi, however, the defendant.
siiould have reasonable notice of the application for the writ: Jones v.
Hooper, 50 Miss. 510. And in California, when application is made for a
writ of assistance under a sheriff's sale enforcing the lien of a tax, notice
should be given to the defendant and also the terre-tenant, if there be one
who will be disturbed by the execution of the wnti City of San Jos6 v. Fvl^
ton, 45 Cal. 316. The application for the writ should be made in the court
beloiK', and not in the higher court: Byerson v. EUdred, 18 Mich. 195; Harvey
v. Morton, 39 Miss. 508; and it should be granted, not by the clerk, but by
the court on hearing the facts: Bruce v. Honey, 18 HI. 67; Smith v. BriUen-
ham, 3 HI. App. 62. Under rule 9 for courts of equity of the United States, the
clerk of the court may issue vrrits of assistance, and some of the states have
followed this procedure. In Pennsylvania, it was held that under this rule
the writ was so much a matter of course that the prothonotary might issue
it in the cases prescribed by the rule without any application to the court:
Commonwealth ex rel. Smith v. Dkffenhach, 3 Grant's Ga«. 368.

This practice was followed also in Wisconsin, where it was held that no
discretion was left with the clerk to withhold the writ, when the party shall
have complied with the terms of the rule: Attomeij Oeneral ex I'el. Caleb
Gushing y. Lum, 2 Wis. 507; but the writ, under this rule, as against a
stranger to the suit, can issue only upon the order of the court, though it is
otherwise where the party in possession is a defendant: Goit in the suit q/
Knapp V. Dickerman, 20 Id. 631. This rale entirely changes the former prac-
tice of courts of equity iu regard to the mode of obtaining this writ: Attor-
ney OrnercU ex rel. Caleb Cushing v. Lum, supra. Where a writ, improp-
eily granted, is afterwards set aside, the person dispossessed under it is
entitled to be put into possession: Chamberlain v. Choles, 35 N. Y. 477. If
the return of the first writ does not declare clearly that it has been fnlly



Online LibraryAbraham Clark Freeman John ProffattThe American decisions: cases of general value and authority ..., Volume 51 → online text (page 18 of 121)