Jones v. Hooper

Simrall, J.,

delivered the opinion of the court.

Two questions are presented in this case. First. The nature and office of the writ of assistance. Second. In what circumstances, and at the instance of what parties may it be invoked, under the practice of a court of equity?

The object of the writ is to put a party who has purchased real estate at judicial sale, into the possession of the premises. The most familiar instance of its use is where land has been sold under a decree foreclosing a mortgage. But manifestly it would apply to any other rule enforcing a lien, whereby the title and right of the property would pass to a purchaser. In such cases the relief attempted to be administered by the chancery court is, on the one hand, to raise by a sale of the property, the debt for which it has been incumbered, and on the other, to transfer the property to the purchaser. The vendee does not buy merely a title to the property and a right to the possession which may be enforced in a court of law, but he purchases the title and the right of imme *514 diate possession as incident to tbe title. A court of equity would fall short of doing complete justice, unless it put him in possession, as well as gave him a deed, the muniment of his title. Nor is there any objection to this, if the person deprived of the possession was a party to the suit, or came into possession under him pendente lite. Kershaw v. Thompson, 4 John. Ch. Rep., 60 9; Creighton v. Paine, 2 Ala. Rep., 159 .

The subject was examined by Chancellor Kent, in Kershaw v. Kershaw, 4 John. Ch. Rep., 611, and the power was placed upon the ground of the full, jurisdiction of a court of equity to administer complete and efficient relief. If it has authority to dispose of the fee, it ought also as to all the parties to the decree, to control also the possession. The power of the court would be defective and inadequate to full redress, if rhe suitor must resort to a court of equity to procure a decree of sale, and after investing the purchaser with the title turn him over to a suit at law, with the expense and delay incident to it, to get the possession. The case of Dove v. Dove, 1 Brown. Ch. Rep., 330, top p.,by Perkins, and same case more fully reported in 2 Dick., 617, is much like this case. By the decree the estate of the testator was to be sold. The widow was a party to the suit. The purchaser demanded of the widow possession, which she refused. He applied to the court, pursuing the regular course of procedure, to obtain the possession, and did obtain it by the writ of assistance.

The formula is given in note to this case in 1 Brown. Ob. Rep, Service of writ of execution of the decree and of the party’s refusal.

2. An attachment issued thereon.

3. Injunction granted on such attachment.

4. Writ of assistance directed to the sheriff to deliver the possession.

See also Huguenin v. Basely, 15 Vesey, 180. In Ludlow v. Lansing, 1 Hop. Ch. Rep., 232, the authority of the court to issue the writ is placed upon the power of the court to carry its decree *515 into effectual execution, and thereby avoid the circuity of vexatious and useless litigation. Gilcreest v. Magill, 37 Ill., 300 , was the case of an application by the purchaser. No substantial reason can be suggested if the person in possession was a party to the suit.

The reason is that such persons are bound and concluded by the decree.. But the writ is not confined to foreclosure suits. It is applicable, to all oases, where tbe court has authority to decree the sale of property, and thereby transfers by sale the title, and as incident to the title the right to immediate possession. If the decree is conclusive upon all the parties to the suit, in respect to the title to the property, the subject of the decree, it should also be conclusive on the possession of any of the parties, held under that title. No party can be dipossessed by ihe writ rightfully, who was not a party to the suit, or who did not enter under such party pendente lite.

It is objected that Hooper, the purchaser, is a stranger to the suit, and that as purchaser at the sale he does not occupy such relation, as that he can, under the practice, become a suitor for the writ. The principle in Redus v. Hayden, 43 Miss. Rep., 636 ,. was stated to be,' “ that a purchaser (at judicial sale), from the moment the property is struck off to him, is deemed a party in interest and submits himself to the jurisdiction of the court —that is, so far as his rights as purchaser and his obligations are concerned. 2 Dan. Ob. Pr., 1272, 3. He may move for a confirmation of the sale, and to be let into possession after he has done everything as respects the sale incumbent on him. Ibid. If the sale is upon a credit, the purchaser becomes a party to thé suit for all the purposes of enforcing payment of his bond by rule to pay the money into court, or by an order to sell the property. Clarkson v. Read, 15 Gratt., 295 .

Purchasers on a credit of one, two and three years were immediately let into possession. Upon their petition, a nuisance (the obstruction of a street with reference to which the lots were sold) was abated. Leake v. Cannon, 2 Humph., 169 .

*516 In the cases above cited, of Gilcreest v. Magill, 37 Ill., 300 , and Creighton v. Paine, 2 Ala., 158 , and most of the others, the application to the court for its assistance to be put in possession was made by the purchaser.

We have already stated to what extent, and for what purposes the purchaser becomes a party and submits to the jurisdiction of the court. He can be compelled to pay the purchase money, or to do whatever else is necessary to complete the sale, such as accepting the deed. It would seem to be but reciprocal right that he should have the aid of the court, to be put in complete enjoyment of his purchase. There is nothing in the case of Wilson v. Polk et al., 13 S. & M, 132, which militates against these views and authorities, except the expression in the opinion, that “ the purchaser can only proceed by getting the vendor to make the application for the process.” The authorities, both in England and in this country, are abundant, that the purchaser may petition in his own name. But in that case Parker was complainant against Baker and Starr, defendants. The application was to turn Polk and Edwards (who were not parties), out of possession. The judgment was plainly right, for one of the reasons assigned by the court, viz: “In a mere order for process, a person might be turned out of possession, whose rights had never been tried.”

If the record of the proceedings in the chancery court would be conclusive evidence of the purchaser’s right of recovery, as against the defendant in possession at law, cui bono, multiply litigation, by remitting the party to the court of law. On the hearing of the application for the writ, the defendants thereto would be allowed to show the invalidity of the decree as that it was void; the same matter that would defeat the recovery in ejectment.

The modern practice permits a proceeding simpler and less tedious than formerly prevailed, yet retaining all that is essential in the ancient formula. It seems to be enough to file a petition setting forth the sale under the decree, the purchase, and the deed *517 by the commissioner, confirmation of sale, payment of the money if made for cash, that the deed was exhibited to the defendant and possession demanded, and praying that the writ may issue. The defendant should have reasonable notice of such application. 1 Hopkins’ Rep., supra ; 2 Ala., supra. There was no objection in the chancery court to the form of the application. Both parties seem to have contested on the merits. For that purpose they made an agreed state of facts.

Let the decree awarding the writ be affirmed.