71 Wis. 585 | Wis. | 1888
This was an application by the appellant for a writ of assistance to put the applicant into the possession of a parcel of real estate which he claims had been sold on an execution issued upon a judgment in an action for divorce brought by Mary J. Sullivan, as plaintiff, against her husband, Daniel Sullivan, the respondent in this appeal. Upon such execution sale a sheriff’s deed had been issued to the applicant. Possession of the premises had been demanded of the defendant, Daniel Sullivan., by the applicant, and he refused to surrender the possession to him. The respondent resisted the motion for the writ on the ground that the property sold on the execution was his homestead at the time the judgment was rendered and docketed, as well as at the time of the sale thereof upon said execution. The circuit court refused to order the writ to issue, but without prejudice to the right of the applicant to bring an action of ejectment to recover said lands.
The application for the writ was made under the provisions of sec. 3025, R. S. 1878. Previous to the enactment of said section in 1878, the courts had never had the right, or, if they had, had never exercised the right, to issue a writ of assistance to put a purchaser of real estate upon an ordinary execution sale into the possession of the real estate so purchased by him. Previous to the passage of this law the purchaser’s only remedy in this state was by action of ejectment against the party in possession, if he refused to surrender the possession.
Courts of equity have from the earliest times exercised the right to issue the writ of assistance in actions in equity brought for the purpose of determining the rights of the litigants to the title or possession of real estate, after judgment declaring such rights, as well as in cases for the foreclosure of or redemption of mortgages. In such cases the courts of equity having jurisdiction of the persons and propertjr in controversy have, after determining the rights
In order to obtain the writ of assistance under the statute the applicant must show that at the time the judgment was docketed the defendant in such execution had an interest in the real estate upon which the judgment so docketed was a lien, and that such defendant, or some .one claiming under him by title acquired subsequently to the docketing of such judgment, is in possession and refuses to surrender such possession to the purchaser. On the application for this writ the respondent meets the claim by
The learned counsel for the appellant claims that the judgment rendered in the divorce case against the defendant in the execution, the respondent on this appeal, is a lien upon the homestead. That presents a question of law, and might perhaps be determined upon the application for a writ of assistance under the statute; and if it must be_held as a question of law that it was a lien upon the homestead of the respondent, and that such homestead was subject to sale on such judgment, as any other real estate owned by him, there would then seem to be no good reason for turning the appellant over to his action of ejectment to recover the possession of said premises. The judgment in the divorce case under which the execution was issued and the sale made, after adjudging that the said Mary J. Sullivan be divorced from the said Daniel Sullivan, proceeds to adjudge as follows: “ And it is hereby further ordered and adjudged that the plaintiff be allowed, and have, and recover of the said defendant, Daniel Sullivan, by a judgment of this court, the sum of eight hundred dollars, and fifty dollars as attorney’s fees, and the costs of this action, taxed at sixty-two and 90-100 dollars, and that execution issue therefor.”
It will be seen that this is a mere money judgment, upon which execution is directed as in ordinary money judgments. It is not even declared that the $800 is for alimony or in lieu of alimony, and it does not declare that the judgment shall be a lien upon any of the defendant’s real or
It is said by the learned counsel for the appellant that the circuit court had adjudged, in a former proceeding in the divorce action, that the premises in question were not a homestead. After a careful reading of these proceedings it appears to us that the question of homestead was not in issue in said proceedings, and was not passed upon by the court. The proceedings referred to by the learned counsel were the proceedings upon a motion made by the defendant, Daniel Sullivan, in the divorce suit, after judgment, to set aside said judgment, or that part of it which adjudged that he should pay the plaintiff, Mary J. Sullivan, the sum of $800 and the costs of the action. The grounds of the
By the Court.— The order of the circuit court is affirmed.