69 Ala. 484 | Ala. | 1881
Courts of chancery have authority, both by their common law jurisdiction and under the express provisions of the statute, to issue writs of assistance, or possession, for
But this right is largely discretionary, and will not ordinarily be exercised without application supported by affidavit, showing due service of the decree or order of the court sought to be enforced, an.d that it has not been obeyed; and, according to-the better practice, <notice of the motion requesting the issue of the writ should be given to the adverse party. — Creighton v. Paine, supra; Devaucene v. Devaucene, 1 Edw. (N. Y.) 272 2 Daniell’s Ch. Prac. 1062-63; Thompson v. Campbell, 57 Ala. 183.
So 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. — 2 Dan. Ch. Pr. (5th Ed.) 1063, note 3; Barton v. Beatty, 28 N. J. Eq. Rep. 412; Kershaw v. Thompson, 4 Johns. Ch. Rep. 609.
The petitioners in this case have allowed between six and seven years to elapse from the day of their purchase of the lands in controversy to the date of filing the application. The reasonable presumption in such a case is, that the party in possession holds as a tenant of the purchaser, or under other like claim of right. This is not negatived by the petition or by any proof, and on this ground we are of opinion that the chancellor did not err in refusing the relief prayed.
Affirmed.