Skinner v. Beatty

Baldwin, J. delivered the opinion of the Court Cope, J. concurring.

Prima facie, the plaintiff, after the purchase of the mortgaged premises and Sheriff’s deed, was entitled to his writ of assistance as against the mortgagor, and those entering under him, after the decree, if they refused to surrender possession. After the writ was ordered, the mortgagor and his wife moved to set it aside, on the ground that [158]they had, before the'mortgage, resided on the premises as a homestead, etc. The Court refused to set aside the order. The order was granted in view of the whole facts of the record. It was no answer to the legal effect of these facts to say that these parties had moved on and occupied the premises as a homestead; they must show them right. The plaintiff was entitled to this writ, whether these facts were true or not—as the premises were mortgaged for the purchase money—there is no denial of this fact in the record; on the contrary, it is shown by the proof. The order granting the writ should only be set aside on a showing that it was improperly made; and it was not, if these premises were mortgaged by Beatty for the purchase money. The appellants should have denied this fact, if it could truly have been denied. But the transcript shows, by affidavit and otherwise, that this mortgage was so given. There is no pretense, then, of a homestead.

If such a pretension as this could defeat a party’s right to this writ of assistance, the process would fall into practical disuse, for, in every case, some 'suggestion would be made of a title of some sort, in a member of the family or lodger in the house, which would remit the party to his action of ejectment. (See Montgomery v. Tutt, 11 Cal. 190.) There is no danger in such a process, for, if improperly issued or executed, the Court can, on summary motion, set aside the writ or the service, and restore the possession.

Order affirmed.