11 Cal. 190 | Cal. | 1858
I. The Court below erred in ordering the issuance of a writ of assistance against the appellant alone. The action and the decree were against him and several others jointly. The writ should conform to the decree.
II. The decree does not authorize the issuance of the writ. It does not require the delivery of the possession to the purchaser under the mortgage sale, and there was no technical foreclosure. Daniell’s Chan. Prac. 1280; Smith’s Chan. Prac. 447.
Belcher, Beatty & Clark for Respondent.
1. A Court of Chancery has power to carry its own decrees into execution.
2. When the mortgagor in possession, after foreclosure and sale, and expiration of time for redemption, refuses to deliver possession to the purchaser under Sheriff’s deed, the writ of assistance is the proper remedy. Story Eng. Juries, sec. 959 ; Daniel’s Ch. Prac. 1267 and 1281; Edw. on Injunc. chap., 17, p. 425 ; Smith’s Chan. Prac. 445 ; Kushan v. Thompson, 4 Johns. Ch. 609; Ludlow v. Lansing, 1 Hopk. R. 231; Valentine v. Teller, 1 Hopk. 422; Buñum’s Case, 13 FT. H. 14; Oliver v. Caton, 2 Md. Ch. Die. 297; Garretson v. Cole, 1 Har. & John 370; Davis v. Flinhaker, 5 Cal. 244.
Baldwin J., concurring.
The principal question presented by the appeal in this case is, whether the writ of assistance is the appropriate remedy to place the purchaser of mortgaged premises, under a decree of foreclosure, in possession, after he has obtained the Master’s or Sheriff’s deed. Of this there can be no doubt, as against the defendants in the suit, who are bound by the decree, and who refuse to surrender possession upon the order of the Court to that effect. The order, like the one made in this case, takes the place in our system of procedure of the judicial writ of injunction, used in the old Chancery practice, in the en
According to the old chancery practice, there was, first: the order for the delivery of possession; then an attachment for not complying with the order, which was seldom served and could be dispensed with; afterwards the injunction issued, which, if not obeyed, was followed by the writ of assistance. 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. (Valentine v. Teller, 1 Hop. Ch. 422.)
■ The several objections taken by the appellant to the order, aside from the one made to the character of the remedy, are without merit and entitled to no consideration. There was no stay of proceedings on appeal from the decree; the presence of the appellant by his counsel and the argument of the motion by him, obviated the want of any notice of the motion; the allegation that the appellant lives with his parents, who claim the premises as a homestead, cannot avail him ; the mortgage upon which the suit was brought being given as secuiity for the purchase money of the premises, no homestead could be carved out of the property so as to impair the rights of the previous mortgagee ; and the allegation of irregularity in the sale under the decree, rests without proof.
Order affirmed.