O'Connor v. Schaeffel

McAdam, C. J. The writ of assistance, so far as foreclosures are concerned, is an old chancery writ, which exists independent of the statute. 4 Wait, Pr. 196. It may be had to enforce any judgment or order awarding the possession of real property, other than the common judgment, in a direct action for land. 2 Till. & S. Pr. 849, and see, also, Lynde v. O'Donnell, 12 Abb. Pr. 286, 21 How. Pr. 34; Insurance, etc., Co. v. Rand, 8 How. Pr. 85, 352. A writ of assistance, is, in ordinary cases, the process for giving possession of land under an adjudication, and will be granted upon the sale being confirmed, and proof that the purchaser has received a deed of conveyance from the master, which has been shown to the party in possession, accompanied by a demand of possession which has been refused. 2 Barb. Ch. Pr. 531. These requirements were fulfilled here. Section 8, c. 342, Laws 1885, under which the lien was foreclosed, provides inter alla that the manrer and form of conducting a mechanic’s lien proceeding shall be the same as the foreclosure of a mortgage. The power to foreclose was expressly conferred upon this court, and everything necessary to a complete execution of the jurisdiction goes with it. This court has the same power to issue the writ applied for as that possessed by any other court acting under the same statute. The enforcement of mechanics’ liens is a sort of equity jurisdiction, governed by equitable rules and principles, and the old chancery writ of assistance is the process by which the purchaser gains the possession to which the proceedings entitle him. The writ has not been abolished by any express provision of the Code, nor lias a substitute been provided for it by that or any other act, and, except where the judgment can be enforced by execution, the writ is still an appropriate remedy. The judgment herein cannot be enforced in respect to possession by execution, and the relief required must be obtained by this writ. It follows that the application for the writ must be granted.