Strong v. Smith

| N.J. | Jul 7, 1905

The opinion of the court was delivered by

Dixon, J.

On June 12th, 1900, Albert G-. Spalding executed to Alice C. Strong a mortgage for $50,000, on land in Monmouth county, and the mortgage was duly recorded June 20th, 1900. On April 25th, 1901, Spalding conveyed the property to Bernard Smith, by deed, duly recorded April 29th, 1901, and Smith gave back to Spalding a purchase-money mortgage of the same date, which was also duly recorded on April 29th, 1901. On July 15th, 1903, Alice C. Strong filed a bill in chancery to foreclose her mortgage, making Spalding and Smith parties defendant, and in pursuance thereof the property was, on May 13th, 1904, sold to Spalding by virtue of an execution to satisfy the Strong and Spalding mortgages. On July 21st, 1904, Spalding received a deed for the property, and on October 12th, 1904, presented to the chancellor a petition for a writ of assistance commanding Smith and anyone claiming under him to deliver possession of the property to the petitioner. This petition having come to the knowledge of David Lamar, he appeared at the time set for the'hearing to oppose the issuance of the writ, and was thereupon formally admitted as a party to the proceeding. By the testimony subsequently presented on his behalf, it was disclosed that he claimed to be in possession and entitled to possession of the mortgaged premises under an unrecorded lease made to him by Smith on May 22d, 1901, for the term of five years from that date, and that his possession had been open and continuous since the date of the lease. After full hearing an order was made that the writ should issue notwithstanding his claim, and thereupon he has appealed to this court.

The appellant does not question the superiority of the petitioner’s right of possession; his only contention is that it cannot be enforced by writ of assistance. His position is that such a writ can lawfully issue against those only who are barred by the decree in the cause, and that as his rights were acquired before the commencement of the suit, and he was not made a party defendant, although in open occupation of the property, the decree did not affect him. To maintain his position 'respecting the limited scope of the writ, he refers to the expressions of various text-writers and to the opinion of Chancellor Zabriskie, in Blauvelt v. Smith, 22 N.J. Eq. (7 C. E. Gr.) 31.

The utterances thus cited may be regarded as declaring the general rule, but they cannot be deemed accurate statements of the law on this subject. The function of the writ is to put into actual possession of property the person who, under decree of the court, becomes entitled thereto, and, as was said by Chief-Justice Beasley, speaking for this court, in Beatty v. De Forest, 27 N. J. Eq. (12 C. E. Gr.) 482, “the remedy is founded on the general principle that a court of equity will, when it can do so justly, carry its own decrees into full execution without relying on the co-operation of any other tribunal. The consequence is that it cannot refuse its aid to one of its suitors in this respect, except on some reasonable ground of equity.” In pointing out the origin of the writ and the proper practice relating to it, Chancellor Green, in Schenck v. Conover, 13 N. J. Eq. (2 Beas.) 220, 227, stated these rules: The writ may issue “not only as against the defendant, but against any party in possession under him, or by title not superior to his. * * * The exercise of the power rests in the sound discretion of the court. It will never be exercised in a case of doubt, nor under color of its exercise will a question of legal title be tried or decided.

The words of these eminent jurists mark the true sphere of the writ.

Of course, it is necessary that the rights of the person from whom possession is sought should in some lawful mode be subjected to the jurisdiction of the court. Ordinarily this is done bjr making him a party to the suit in which the decree to be enforced is rendered. But it may be done by giving him notice of the possessory proceeding instituted on the basis of the decree, or by his appearance in such proceeding. If, when he is thus brought in, it is clearly shown that he claims under one who was a party to the suit, and that his right of possession is undoubtedly subordinate to the right for the enforcement of which the writ of assistance is prayed, then it may be issued against him, even though technically he is not bound by the decree.

Such is the situation of the present appellant, and there is’ no reasonable ground of equity on which the court can refuse its aid to the petitioner against him.

This view renders it unnecessary for us to consider whether under section 58 of the Chancery act of 1902, amended in 1903, or by force of any estoppel in pais, the decree in foreclosure bars the appellant from his equity of redemption.

The order appealed from is affirmed.

For affirmance—The Chief-Justice, Dixon, Garrison, Fort, Garretson, Pitney, Swayze, Bogert, Vredenburgh, Vroom, Green—11. For reversal—None.