251 N.C. 52 | N.C. | 1959
“A ‘writ of habere facias possessionem’ or a ‘writ of possession’ is generally used to enforce a judgment in ejectment. The writ should pursue the judgment and contain a sufficient description of the property.” 28 C.J.S., Ejectment § 122(b). 18 Am. Jur., Ejectment § 140 et seq.
“The writ of assistance is a form of process issued by a court of equity to transfer the possession of lands, the title or right of possession to which it has previously adjudicated, as a means of enforcement of its decree, instead of turning the party over to a court of law to recover such possession. It performs the same office in a suit in equity as an execution in an action at law, being nothing more than the process by which the court of equity finally carries its judgment or decree into effect. . . . Indeed, the writ may be termed an equitable habere facias possessionem. The writ of assistance is sometimes called a writ of possession, the objects of the two being substantially the same, that is, to put the person entitled to property in possession. The distinction is that the former is the proper remedy in equitable, and the latter in legal, actions.” 4 Am. Jur., Assistance, Writ of, § 2. Bank v. Leverette, 187 N.C. 743, 123 S.E. 68, and cases cited.
“. . . on an application for a writ of assistance, the title cannot be adjudicated or the original case reviewed, or .the decree modified.” Bank v. Leverette, supra; Exum v. Baker, 115 N.C. 242, 20 S.E. 448. “The writ of assistance ... is ... for the enforcement of decrees or orders conferring a right to the present possession or enjoyment of property.” Clarke v. Aldridge, 162 N.C. 326, 78 S.E. 216; Gower v. Clayton, 214 N.C. 309, 199 S.E. 77, and cases citedi.
“It (the writ of assistance) has been defined as a form of process issued by a court of equity to transfer the possession of lands, the title or right of possession to which it has previously adjudicated, as a means of enforcing its decree.” (Our italics) Bank v. Leverette, supra. Its sole function is to enforce the execution of a judgment. G. S. 1-302. Hence, a party is entitled to such writ only when the judgment he seeks to enforce has adjudged that he is entitled to such possession.
We have not set forth the findings of fact and conclusions of law of Judge Paul. The gist thereof is that petitioners failed to identify the lands described in the petition and failed to establish either record title or title by adverse possession thereto. There was no finding of fact or conclusion of law to the effect that the Development Company owned the lands described in the petition or any part thereof or that it was entitled to possession.
Whether there was error in Judge Paul’s findings of fact or conclusions of law, and whether there was error in the judgment rendered thereon, were matters for consideration only upon appeal from said judgment. Where, as here, there is a final judgment, the judgment itself is the only source to which we may look to ascertain whether the Development Company is entitled to a writ of possession. Judge Paul did not so adjudge. It was error for Judge Parker, upon after-judgment pleadings, to attempt to do so.
No question is now presented as to whether any of the findings of fact or conclusions of law of Judge Paul, as distinguished from his judgment, would operate as an estoppel in an independent action between appellants and appellee relating to the lands described in tne petition.
The Development Company stresses the fact (and apparently Judge Parker’s decision was based largely thereon) that the petition for partition alleged: That Lula Freeman Hill owned a 50/480 undivided interest; that Lula Freeman Hill and husband, Frank C. Hill, owned a 21/480 undivided interest; that the Development Company owned a 284/480 undivided interest; and that other petitioners and respondents owned other specified undivided interests. It is contended that the Hills, by their said allegations, in effect admitted ownership by the Development Company of a 284/480 undivided interest.
While, as stated above, the right to a writ of possession depends solely on the judgment, it seems appropriate to call attention to this additional fact: Petitioners alleged that the Development Company’s 284/480 undivided interest was acquired by it from Woodus Kellum, Trustee, who derived his title from John Nathan Freeman, et al. The answer of the Development Company admitted these conveyances, but expressly denied “that any of the lands described in said deed to it constitutes any part of the lands and premises described in the
Judge Parker rightly refused .to consider the matters alleged in the Hills’ counter-motion, wherein they attempted to attack Judge Paul’s judgment by asserting errors therein and in the proceedings culminating in the entry thereof. Judge Paul had jurisdiction of the parties and of the subject matter; and, absent an appeal, the proceedings before Judge Paul were not subject to review either by Judge Parker or by this Court.
Since the judgment of Judge Paul did not adjudicate that the Development Company was either the owner or entitled to the possession of the lands described in the petition for partition, it was not entitled .to said “ORDER AND WRIT OF POSSESSION.” The entry thereof was error. Hence, the said “ORDER AND WRIT OF POSSESSION” is vacated and stricken.
Order and writ of possession vacated and stricken.
