Montgomery v. Middlemiss

21 Cal. 103 | Cal. | 1862

Field, C. J. delivered the opinion of the Court

Norton, J. concurring.

It is impossible to perceive, from the facts disclosed by the transcript before us, what effect, if any, the quitclaim deed of the mortgagee had upon the rights of Middlemiss. It was executed during the pendency of the action for the foreclosure of the mortgage, and if available for any purpose it should have been in some form presented to the consideration of the Court before the decree for the sale of the entire premises was entered. The decree concluded the rights of the parties to the action, and the sale under it, consummated by the Sheriff’s deed, passed, as against them, the entire estate held by the mortgagor at the date of the mortgage. As against them, the purchaser was entitled, upon the receipt of his deed, to the possession of the premises, and if necessary, to the aid of the Court in enforcing its delivery.

It is urged by the respondent, in support of the order refusing the writ of assistance, that the decree did not contain any direction to deliver the possession to the purchaser, and that no preliminary order for such delivery was made by the Court; and as sustaining the objection, the case of Montgomery v. Tutt, (11 Cal. 193) is cited. In that case we referred to the steps required under the old chancery practice to obtain the writ, and observed that “in our system, the order to deliver possession should be first made, unless a direction to that effect is contained in the decree, and if upon its service that is disregarded, the Court can at once direct the writ to issue. If delivery of possession to the purchaser is directed by the decree, no preliminary order will be requisite; but upon proof of disobedience to the decree, the party will be entitled, as a matter of course, to the writ as against the defendants in the suit.” Upon further consideration of the subject in later cases, we' have come to the conclusion that the preliminary order may be omitted even where no direction for the delivery of possession is contained in the decree. The legal effect of the decree is the same without the direction. (Horn v. Volcano Water Company, 18 Cal. 145.) All that is requisite to obtain the writ, as against the parties and those claiming with notice under them after the commencement of the action, is to furnish to the Court proper evidence of a presentation of the deed to them, and a demand of the possession, and their refusal to surrender it.

It follows that the order of the District Court refusing the writ must be reversed, and that Court directed to issue the writ pursuant to the petition of the plaintiff; and it is so ordered.