Creighton v. Paine

| Ala. | Jan 15, 1841

ORMOND, J.

— The counsel for'the plaintiff has brought to> the notice of the Court several matters, which occurred previous to the application of the purchaser for the writ of possession; which, if erroneous, cannot be noticed at this time, as-there is no party now before the Court, who has the right to-complain.'

The object of the appeal, is to review an- orderof'the Chancellor, directing a writ of possession to issue against the widow and! children of the original defendant.

It was denied by the counsel, for the plaintiff in error, that a Court of Chancery had power to put a purchaser; under the decree of the Court, into possession of the premises, at least, without notice to the person in possession, that application would be made for such an order. It appears to be very clearly settled; that a Court of Chancery has the power after a decree of foreclosure-and sale of the mortgaged premises, to put the purchaser in possession, if the possession is withheld by the defendant, or any person, who has come into possession under him, pendente lite. This is an incident of the right of the Court to foreclose the mortgage and decree a sale of the premises. The whole proceeding is in rem, and the decree acts upon the possession, which is sold with the land'. It would indeed be a strange anomoly, if the Court, which passed on the rights of the parties, and ordered a sale of the land, could not perfect its act by putting the purchaser in possession, but must turn the party over to obtain the possession by another suit.

The mode however, in which this was attempted, is altogether irregular. The proper course is for the purchaser t'o> petition the Court, setting forth his purchase, the deed under which he claims, and particularly describing the land purchased by him, and by whom the possession is withheld, and that such person has had notice of the intended application. If, on examination, the Chancellor is satisfied that the possession is withheld by some one]who is concluded by the decree, that is, by the defendant himself, or some one who has come in under him pendente lite, he will make a decretal order, that the possession be delivered to the purchaser, unless the master had been previously, directed by the decree of foreclosure, to put the purchaser into possession. If this order be not complied with, on application, an injunction will issue commanding those in possession forthwith to deliver it up; and on affidavit of service of the injunction, and refusal, a writ of assistance to the SherifT to put the party in possession, issues of course, on motion, without notice.

That this is the practice of the Court, is shewn by Chancel lor Kent in the case of Kershaw v. Thompson, 4 John Chan. Rep. 609; and Dove v. Dove, 1 Bro. 375.

It was insisted by the defendant’s counsel, that, authority was given by statute to the Chancellors, to issue a writ of possession, but that power is only given where a decree is rendered on a bill for specific performance. See Aikins’s Dig. 28 7.

But-although this proceeding is wholly irregular, and unauthorized either by statute, or by the course of proceedings in a Court of Chancery, it cannot be redressed in this Court un the present application.

This appeal is taken by those in possession against the complainants, and the bond to prosecute the appeal is executed to them. But they are not actors in this proceeding; but, so far as we can gather from- the record, are entirely passive.

The order of the Chancellor recites, that the purchaser moved for a writ of possession, which was granted on his motion. It is therefore irregular to prosecute the appeal against parties, who have had no agency in producing the result complained of, and have no interest in contesting it; for the reason, therefore, that this appeal is not prosecuted against the Planters’ & Merchants’ Bank, the purchaser of the premises sold under •the decree, the appeal is dismissed.