Knight v. Houghtalling

Writ of Assistance. 1. A writ of Assistance is in the nature of an equitable habere facias possessionem, and only issues out of Courts of equity, when land has been sold under a decree, and the terre-tenüni refuses to give possession to the purchaser. 3. The writ is never granted except when the case is clear, and notice has been given to the person in possession of the land. 8. All that is required to obtain the writ, as against the parties and those claiming under them by conveyance made ‘pendente lite, is to show a presentation of the deed, and a demand for the possession, and a refusal. The demand for possession is in all cases necessary, but the presentation of the deed may be waived by the conduct of the person in possession.

Petition fikd in the Supreme Court in the above entitled action, by R. W. Winston and T. L. Hargrove, the purchasers at the sale made under the decree of this Court in said action, heard at February Term, 1886, of the Supreme Court. This was a petition for a writ or ASSISTANCE, filed in the case of Knight v. Houghtalling, which was decided by the Court at the October Term, 1884, and reported in 85 N. C., 17. It was a civil action to foreclose a mortgage. There was a judgment in the case, at October Term, 1884, against the defendants, one of whom was William H. Wood, the defendant in this petition, directing the land conveyed in the mortgage to be sold for the payment of the judgment. The Clerk of this Court was appointed commissioner to effect the sale. He made the sale on the 14th day of September, 1885, when Robert W. Winston and Tazewell L. Hargrove, the petitioners, became the purchasers, and the said commissioner made his report of the sale, and the compliance of the purchasers with the terms of sale, to the October Term, 1885, of this Court, when the said report was confirmed by the Court, and title ordered to be made by the commissioner to the purchasers. In pursuance of said order, a deed for the land was duly executed by the commissioner to the said- Winston and Hargrove, which was soon thereafter registered in the Register’s office for the county of Granville. The petitioners allege in their petition, that they had applied to William H. Wood, who was in the actual possession of said land, and had been since before the judgment in the action of Knight v. Houghtalling, to surrender to them the possession of the same, which he positively refused to do, as is shown by the affidavit of Robert Winston, which accompanies the petition. The affidavit states that he met Wood on the 18th of January, 1886, and told him that he and Tazewell Hargrove had purchased the land, and had a deed for the same, which was registered, and they wanted possession. Wood replied in an angry tone, “Well, sir, I am going to hold to that land, and your trouble has just begun, and don’t you forget it.” The petitioners also supported their petition by the affidavit of J. N. Lyon, a deputy sheriff, who served a written notice of the purchase and deed, and a demand by the petitioners, on the said Wood, for the possession of the land on the ... day of January, 1886', when the,said Wood said, “They may think they have stolen the land, but they are badly mistaken, and it will be late when they get it.” Upon this state of facts, the petitioners prayed that this Court would grant them a writ of assistance.