Long v. Morris

ANDERSON, J.' “The writ of assistance will issue against a party to the suit or his representative, or a person coming into possession under him pendente lite, or after a sale of the premises, or against any person who holds possession as a mere intruder or trespasser.” • — 4 Cyc. 292; Wiley v. Carlisle, 93 Ala. 237, 9 South. 288; Thompson v. Campbell, 57 Ala. 188. “A writ of assistance is the ordinary process used by a court of chancery to put a party, receiver, sequestrator, or other person into possession of property, when he is entitled thereto, either upon a decree or an. interlocutory order. The most familiar instance of its use is where land has been sold under a decree foreclosing a mortgage; but it is also employed whenever a court of equity, having jurisdiction of the premises and property in controversy, has determined the rights of the litigants to the title or possession of real estate. The writ will issue in favor of a purchaser at a sale of real estate under a decree, and according to the weight of modern authority it will be awarded in favor of the grantee of such purchaser. The writ will issue only against parties to the suit, or their representatives, or those who come into possession under either of the parties while the suit was pending. If, in a suit to foreclose a mortgage, the court does not acquire jurisdiction of the person owning the land at the time the suit is begun, a writ of possession against the owner or his grantee will be refused.” — 2 Am. & Eng. Ency. PI. & Pr. 975; Terrell v. Allison, 88 U. S. 289, 22 L. Ed. 634. [375] Our court seems to have extended tlie rule as against mere trespassers or intruders, whether their possession Avas before or after the suit, but has extended it no further, and it does not apply to persons in possession, who could not be bound by the foreclosure suit, and who claim under a purchase or bona fide claim of ownership, as distinguished from a trespasser, and who went into possession before the suit was brought. A purchaser at a forecloseure sale is not entitled to the writ against one in possession of the land under a tax deed, who claims title to the same and was not a party to the action, or in privity with any party thereto. — Exum v. Baker, 115 N. C. 242, 20 S. E. 448, 44 Am. St. Rep. 449. In doubtful cases the writ should not be issued, and AAdien it has been imprudently or improperly issued it is the duty of the court, upon application, to set it aside and restore the injured party to the possession. — Wiley v. Carlisle, supra. In the case at bar, Long went into the possession of the land as a purchaser, and under a deed from McClellan, before the sale and before the pendente lite, and should not have been ousted by the Avrit of assistance, and the chancery court erred in not granting his petition to Aracate the said writ and to reinstate his possession. It is suggested in brief of counsel, as Avell as in the opinion of the chancellor, that Long had no title, as he bought from McClellan, Avho bought under a sale subsequently vacated. The validity of Long’s title was not a proper inquiry in proceedings of this kind; for, if he Avas improperly ousted, he should haAre been restored to his original status and litigated with in the proper manner as to the sufficiency of his title. The Avrit of assistance should not be exercised in case of doubt, nor under color of its exercise will a question of legal title be tried or decided. — Barton v. Beatty, [376] 28 N. J. Eq. 412; Foreman’s Case, 130 Ala. 278, 30 South 480; Thompson v. Campbell, 57 Ala. 183. The decree of the chancery court is reversed, and the cause is remanded, in order that the lower court may proceed in conformity with this opinion. Reversed and remanded. All the Justices concur, except McClellan, J., not sitting.