223 P. 499 | Mont. | 1924
delivered the opinion of the court.
The real estate which is the subject of this controversy was conveyed by Emil Felenzer, then a widower, to Walter A. Beck by deed which was intended as a mortgage to secure the payment of a promissory note given Beck by Felenzer. Walter A. Beck transferred the note and executed a deed to the property to Charles F. Beck. After due time the latter brought an action in foreclosure against Emil Felenzer, Ella C. Felenzer, his wife, and others, obtained a decree in December, 1921, and bought in the property at sheriff’s sale in January, 1922. The sheriff gave the purchaser, Charles F. Beck, a deed for the property in January, 1923. The regularity of the foregoing proceedings is not questioned.
In October, 1922, Charles F. Beck and Myrtle L. Beck gave a warranty deed of the property to Lee Beck. Myrtle L. Beck and Lee Beck are the names of the same person, the wife of Charles F. Beck. Why Myrtle L. Beck joined in the deed executed by her husband to herself as Lee Beck is not explained. But that performance does not detract from the sufficiency of the deed thus given by Beck to his wife.
Felenzer and wife, hereinafter called the defendants, remained in possession of the premises during the period of redemption following the sheriff’s sale, and thereafter, as will be related. In March, 1923, Lee Beck, through T. B. Quaw, her agent, served upon the defendants a notice and demand for
The defendants having refused to give up possession, Lee Beck, after notice to them, applied to the district court for a writ of assistance. The court made an order granting the issuance of the writ. From that order the defendants have appealed.
1. Defendants’ chief contention is that the court erred in retaining jurisdiction of the motion for the writ after it appeared that the defendants were claiming possession of the premises under an agreement made subsequent to the issuance of the sheriff’s deed.
The writ of assistance is a process employed to transfer the possession of lands when a court of equity having jurisdiction of the persons and the subject matter in controversy has determined the rights of the litigants to the title or possession thereof. (2 R. C. L. 72.) The power of the court to issue and enforce the writ results from the principle that jurisdiction to enforce is coextensive -with jurisdiction to hear and determine the rights of the parties, for the obvious reason that it is not sufficient, for the ends of justice that a court may declare a right and yet not have the power to afford the remedy. (Terrell v. Allison, 21 Wall. (U. S.) 289, 22 L. Ed. 634 [see, also, Rose’s U. S. Notes]; 3 Cal. Jur. 334; 5 C. J. 1323.)
The writ is a proper remedy to place in possession a mort gagee who has received a sheriff’s deed pursuant to a foreclosure sale as against the mortgagor and all persons holding under him with notice after the commencement of the action. (3 Cal. Jur. 336; 5 C. J. 1320.)
That the purchaser under a decree of sale is entitled to the writ, even though a stranger to the record, is well settled, and by the weight of authority it will issue in favor of the purchaser’s assignee or grantee, unless it appears that by
In their affidavits resisting the issuance of the writ the de fendants do not assert title in themselves, nor is there any claim that the rights of the parties litigant were not fully adjudicated by the decree of foreclosure; except, however, they allege that both before and after the decree Charles F. Beck agreed to pay them for certain repairs they had made upon the property and to permit them to remain in possession until the repairs were paid for. The affidavits filed by the defendants were opposed by affidavits in behalf of Lee Beck, and in these defendants’ allegations respecting the agreement were denied specifically. It is not contended that the agreement was in writing. Indeed, the contrary appears. Passing the question whether the oral agreement is enforceable, the court concluded that the áffidavits of Lee Beck had outsworn those of defendants. With this conclusion we shall not interfere. Defendants’ claim to possession under a “new right” — based upon the so-called subsequent agreement — cannot be maintained. The showing made was not sufficient to invoke the court’s discretion in their favor. (Fox v. Stubenrauch, 2 Cal. App. 88, 83 Pac. 82; Motz v. Henry, 8 Kan. App. 416, 54 Pac. 796.)
If the defendants have a cause of action against Charles F. Beck based upon the agreement they have attempted to assert in this proceeding — if Beck has breached his contract with them — the courts are open to them and will afford an
2. The next point put forth is that Lee Beck is not entitled to the writ because she was not a party to the original action, having acquired her rights, if any, through Charles F. Beck, the purchaser at the foreclosure sale. There is no merit in this contention. Charles F. Beck purchased the property at the sheriff’s sale. (Sec. 9441, Rev. Codes 1921.) No redemption having been made in due time, he obtained the sheriff’s deed therefor. The title he obtained through these proceedings inured to his grantee. (Sec. 6867, Rev. Codes 1921; McDermott Min. Co. v. McDermott, 27 Mont. 143, 69 Pac. 715.) Being the purchaser’s grantee, Lee Beck therefore was entitled to the writ of assistance. (See authorities above.)
3. It seems that some time Lee Beck had brought an action in unlawful detainer against Emil Felenzer for the possession of the property in controversy, resulting in a judgment against him. The justice of the peace ordered issued a writ of restitution. Hence the defendants say Lee Beck having elected to pursue that remedy has foreclosed her right to ask for the remedy sought in the present proceeding. When this unlawful detainer action was brought the record does not show. The affidavits refer to it as a “previous action.” Probably it was after the decree of foreclosure. No further information concerning this judgment or the writ issued thereon is given. The court is not favored with information of the nature or terms of the judgment. Not having before us the record of the proceedings had in the justice’s court, we do not indulge the presumption that the judgment is valid. It is not even alleged that it was duly given and made. (Sec. 9169, Rev. Codes 1921.) No presumptions are indulged in favor of the regularity of the proceedings of a justice’s court. (State v. Lagoni, 30 Mont. 472, 76 Pac. 1044.) As suggested by counsel for Beck, another conclusive answer to defendants’ contention is that there is no rule of law whereby a judgment in one action in itself is a bar to the issuance of executive process
Anyhow, the remedies given to a purchaser of land under a foreclosure sale by writ of assistance and by forcible entry and detainer are concurrent, and both may be pursued at the same time until a satisfaction is had. (5 C. J. 1316.)
The order appealed from is affirmed.
Affirmed.