Ex parte Forman

130 Ala. 278 | Ala. | 1900

HARALSON, J.

1. The defendant could not, on the facts presented, be held guilty of a contempt for a disobedience to the orders of the court. It is not shown that he kneAV, or ever' heard of the issuance of the writ of assistance in the case referred to, or that Geo. M. For-man, who applies for this writ, ever was put in possession of said premises under said writ of assistance. The plaintiff practically abandons this feature of his case, saying by counsel in brief filed: “All that is asked for here, is an order for the defendant to show cause, if he has any excuse, for hi® having re-entered” the premises, into the possession of which, it is claimed plaintiff was placed by the sheriff under said writ of assistance.

2. Nor is the plaintiff in any better attitude before the court on the other theory of his application, seeking a second writ of assistance from the chancery court. It may be fairly questioned under the authorities, whether an alias can be issued after a writ of assistance has been once returned executed, on the ground, that by the execution and return of the original writ, the plaintiff is put- in possession of the premises recovered, and the judgment or decree is -satisfied, and the court in which it was rendered loses -control of the same. — 16 Eney. PL & Pr., 758, and authorities there cited.

In Hooper v. Young, 69 Ala. 484, the petitioners had allowed between six and seven years to elapse from the day of their purchase of the lands in controversy to the date of the filing of the application. The court held- that they were not entitled to it on the ground that the reasonable presumption in such case is, that the party in possession holds as tenant of the purchaser, or under other like -claim of right. The stating that the right to the writ being largely discretionary with the court, said: “It is plain, that, being summary in its character, the writ should be refused by the court when the purchaser, seeking the aid of it to enforce his possession, has been guilty of such -delay as to leave it doubtful whether or not he has given to the person in possession the right to remain. The rule in other words is, to refuse the writ except in clear cases.” In such a case the question is : “Has the person in possession a right to hold the land by matter arising subsequent to the sale? and not, Is a writ -of assistance necessary to the complete enforcement of the decree? That question must be tried in another tribunal.” Under its -color a question of legal title will not be tried or decided.—Barton v. Beaty, 28 N. J. Eq. 412; 2 Dan. Ch. Pr. 1063, n. 3.

Here, the sale was made on the 1st July, 1895. A writ of assistance was issued by the register of the court, -on the 7th October, 1896, which was returned by the sheriff on the -same day, as having been executed “by putting O. D. -Carmichael, Agt. for Geo. M. Forman into the possession of the Thus. R. McCarty land.” Whether said McCarty knew of the alleged execution of said writ is not shown, and that said McCarty is not the tenant of tlie plaintiff, or that he does not hold under some other like claim of right, is not negatived by the petition or by the proof. This application to the chancellor for a second Avrit was not miade until the 15th May, 1901, nearly five years after the foreclosure decree, and more than four years after the issuance of the first writ. We are unwilling under the 'facts disclosed to put the chancellor in error in the exercise of his discretion to refuse the relief sought, and in leaving plaintiff to seek relief, if he is entitled to any, in another tribunal.

Mandamus denied.