Sexton v. Harper & Mayfield

BOULDIN, J. Courts of equity have the inherent power, upon a decree of foreclosure and 'sale of lands under mortgage, to direct by decree the issuance of a proper writ of possession to put the purchaser in possession. Delivery of possession of the property is an incident to, and in consummation of, the foreclosure proceeding. Granting, for the purposes of this case, that the decree of sale was interlocutory until the sale was confirmed, and a writ of possession issued prior to confirmation would have been premature, the decree of sale became final upon the decree of confirmation. Confirmation of the report of sale made pursuant to a decree consummates the proceedings, which, until then, are in fieri. *309 Where, as in the case at bar, the sale has been duly reported and confirmed by proper decree, and the proceedings affirmed on appeal (Sexton v. Harper, 210 Ala. 691, 99 So. 89), a writ of possession, issued pursuant to direction in the decree of sale, and repeated in the decree of confirmation, cannot be quashed at the suit of a respondent in the suit upon the ground that it purports to be issued pursuant to the decree of sale, rather than the decree of confirmation. If it was error to incorporate in the decree of sale an order for the writ of possession to be issued before confirmation, such error was cured by the decree of confirmation prior to the issuance of the writ of possession. Moreover, for errors in the decree, the remedy was on appeal therefrom, and they cannot be raised on motion to quash the writ issued, as therein directed, after the decree has passed beyond the control of the court. The approved practice of requiring a petition for a writ of assistance on proper notice in cases where it is sought to dispossess persons not parties to the suit, but alleged to have entered pendente lite, or to be in such privity with the parties as to be subject to ouster under the writ, does not apply to the parties to the record. As of course, there can be no occasion for such petition when the decree already entered directs the issuance of the writ of possession. While the rule is different in cases where a writ of possession is asked after such long lapse of time that a reasonable presumption has arisen in favor of the rightful possession of the person sought to be dispossessed, there is no necessity for a petition and hearing, when issued promptly after the disposition of the cause on appeal for the purpose of dispossessing parties to the suit. L8, 9] Moreover, a writ of possession, whose issuance is irregular merely for want of a petition and hearing, will not be quashed unless the motion therefor shows the purchaser is not entitled to have the movant dispossessed under the writ. A writ of possession cannot be made to serve the purposes of a writ in ejectment against third persons not entering in such manner as to be bound by the decree, but such fact should be set up as ground for the motion to quash the writ. Code 1923, § 6650 (3217); Cooper v. Cloud, 194 Ala. 449, 69 So. 928; Creighton v. Paine, 2 Ala. 158; Thompson v. Campbell, 57 Ala. 183; Hooper v. Yonge, 69 Ala. 484; Ex parte Forman, 130 Ala. 278, 30 So. 480; Bethea v. Bethea, 139 Ala. 505, 35 So. 1014. Here the motion is by a party to the suit to quash a writ of possession, issued to place the purchaser in possession, and in pursuance to the decree of the court. It sets up no good reason why the purchaser should not have possession, but is rested upon the ground that the writ purports to be issued under the decree of sale, and there was no petitibn and notice before it was issued. The motion was properly denied. Affirmed. ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.