Baker v. Pierson

Manning J.:

This is an appeal from an order denying a writ of assistance to put a purchaser at a mortgage sale in possession of the premises.

*460 Two questions are presented for tbe consideration of tbe Court: Mrst, Whether an appeal will lie in the case; Second, Whether the appellant has made out a case entitling him to the writ.

We think the appeal will lie, unless it was discretionary-in the Court below to grant or refuse the writ, as it might think proper. In this sense it was not discretionary; but it was discretionary in the sense in which the granting or refusing of an injunction is discretionary — that is, in a doubtful case. The discretion in all such cases is a legal discretion, to be exercised in doubtful cases only, and not where the case is clear and free from doubt. It is then a strict matter of right, which the Court is as much bound to recognize and enforce as any other right of a party. The order denying the writ is a final order — one that is conclusive on the right of the appellant; which right is, to be j>ut in possession of the premises purchased by him at the mortgage sale, as an incident to his purchase. It is a right to the immediate possession of the premises against the parties to the foreclosure suit, and all who are bound by the decree, whether parties or not. It grows out of the decree and purchase under it, and can be enforced by the Court rendering the decree, and no other Court; and an order denying the writ of assistance to enforce it is a final order, touching the right, from which the purchaser may appeal to this Court.

The next question is,-Whether the appellant made out a case in the Court below entitling him to the writ. We think he did. Pierson is in possession, but he was not a party to the foreclosure, and we must refer to the facts to ascertain what his rights are, and whether the appellant is entitled to possession as against him. The bill was filed by Moore, to foreclose a mortgage given by Ives on the Wth day of January, 1853. Ives afterwards gave a second mortgage, and then sold the mortgaged premises to Larned, who afterwards mortgaged the premises three several times to as many different persons. The last of the mortgages was given to *461 Pierson, who was not made a party to the foreclosure. Lamed, and all others interested, were made parties. No notice Us pendens was filed. After the decree, and after the property had been advertised for sale under it, and a few days before the sale, Lamed put Pierson in possession of the premises; and he claims to hold the same under his mortgage, or under some private or other agreement with Larned — for the purposes of the present investigation it is immaterial which, for his mortgage gives him no right to the possession (Comp. L. §4614); and any right to it acquired by agreement with Lamed, when the latter surrendered the premises to him, ceased on the sale under the decree, or was. then put an end to. We 'have no doubt, from the facts before us, he had notice of the pendency of the foreclosure suit when he took possession under Lamed; and that, a3 to the possessory right he then acquired, he is bound by that suit to the same extent Lamed himself is bound. A purchaser from a party to the suit, pending the litigation, with full knowledge of the litigation, is bound by it. It is not necessary a notice of Us pendens should be filed to bind one who has actual notice. It is required, in the absence of actual notice, to charge a party with constructive notice. Pierson resides in the City of New York; and when we say he had actual notice, we mean his agents, or those who conducted the business for him, had such notice, which was notice to him.

The order denying applicant’s motion in the Court below, must be reversed with costs, and an order be entered for the writ of assistance; and the case be remitted, &c.

Martin Ch. J. and Christiancy J. concurred. Campbell J. did not sit in this case.