Knight v. . Houghtalling

94 N.C. 408

• Court: Supreme Court of North Carolina
• Decided: February 5, 1886
• Status: Published

Opinion

Ashe, J.

(after stating the facts). We are of opinion, upon the facts of the case as stated in the petition and accompanying affidavits, that the petitioners ave entitled to the writ.

The writ of assistance is a novel process in this State. We believe it is the first time an application has been made to any Court in this State for such a writ. But it has been frequently used in several of the States.

It may be termed an equitable liabere faoias possessionem, for it is only issued from courts of chancery, and only in these cases when the courts have by their decree, caused lands to be sold, in which case they will complete the sale, by putting the purchaser in possession, when it is withheld by the defendant, or any one who has come into possession pendente lite. It is never issued except when the case is clear, and upon notice to the person in possession, — and it “is held to be the appropriate remedy to place the purchaser of mortgaged premises, under a decree of foreclosure, in possession, after he has obtained the Sheriff’s deed.” Herman on Executions, §353, and cases referred to on margin. It is said by the same authority io §354, that “ all that is requisite to obtain a writ of assistance, as against the parties, and those claiming under them after the commencement of the action, is to furnish to the Court proper evidence of a presentation of the deed to them, and a demand of the possession, and their refusal to surrender it.” A demand of possession it would seem, is always necessary, but the presentation of the deed to the party in possession may be dispensed with, when it is waived by the conduct of the parties, as in this case, when the party in possession was informed of the sale, the purchase, and the deed as registered, and he makes no question as to these facts, but positively refuses to surrender the possession, and sets at defiance the demand of the purchasers.

We are of opinion the petitioners are entitled to the writ, and it is so ordered.

Writ allowed.