64 Miss. 72 | Miss. | 1886
delivered the opinion of the court.
The petition of Henderson was properly dismissed. He is a stranger to the record and is neither in possession of the land nor entitled to possession. That he has a debt against Klein, and has sued on it and garnished, the defendant, who is indebted to Klein and has given a mortgage to secure Klein, gives him no standing in this cause. His right to proceed in the proper manner to enforce his security against the land, if any he has, will not be impaired by any change in the possession of the land which may be made by any order in this cause. Whether the writ of assistance should issue in favor of the grantee of the purchaser is a question not free from difficulty. On the one hand it may be said that the decree is never entirely executed until the possession of the property is changed, and, on the other, that a stranger to the record is not entitled to invoke the aid of the court. So far as we are advised, the question has never been determined by any court of last resort in America. In People v. Green, 45 Cal. 97, it was decided that under a statute of that State giving the writ of assistance to the “holder” of a tax deed, the grantee of the purchaser was not entitled to invoke the writ, the court saying that “ holder ” meant the grantee in the deed executed by the sheriff. In City of San Jose v. Foster, Ib. 316, it was said that the statute only intended to confer the benefit of the writ on such persons as under the established rules of chancery practice would have been entitled to its aid if they claimed under a decree, and that because in chancery the writ would not run in favor of the grantee of a purchaser, so
In Van Hook v. Throckmorton, 8 Paige’s Chy. 29, the Chancellor said : “ There is no settled practice of this court entitling a purchaser from a purchaser at a master’s sale, as a matter of right, to the assistance of the court to obtain possession of the premises which his grantor had purchased under the decree, and such assistance should not be given to him when there is, as in this case, a very strong probability that injustice would be done to the party in possession by such proceedings.” In Insurance Company v. Rand, 8 Howard’s Pr. Reports 35, the supreme court held on this statement of the Chancellor “that in a plain case, where no injustice would be done the person in possession, the court had the power and would exercise it in favor of a second purchaser.”
According to the English practice, it seems that the purchaser from the master was considered as a stranger, and because he was, could not apply for the writ, but that if the complainant would apply for it for his benefit, it was as a “ motion of course.” 2 Smith’s Chancery Prac. 214.
And at one time it was said in this State that the writ could not be applied for by the purchaser at the master’s sale, because he was not a party to the record. Wilson v. Polk, 13 S. & M. 131.
But in Hayden v. Redus, 43 Miss. 636, and Jones v. Hooper, 50 Miss. 510, it is said that the purchaser by his bid subjects himself to the jurisdiction of the court and becomes a party to the suit so far as to enable him to move for confirmation of the sale or for the writ of assistance. In the latter case the court says : “The authorities, both in England and in this country, are abundant, that the purchaser may petition in his own name.”
This being the rule in this State, we know of no reason why he
There is no suggestion in the case now before us that the defendant has any right to the possession of the premises as against the purchaser or his grantee, and under such circumstances we think the writ ought to be given.
The order of the court is therefore approved.
