Langley v. Voll

Department No. 1, McKee, J.: This is an appeal from an order made on December 9th, 1878, for the issuance of a writ of assistance to put the appellants out of, and one William Hale into possession of certain premises which he purchased from one Robert Hamilton, a purchaser at Sheriff’s sale under a decree of foreclosure rendered on the 17th day of April, 1873, in favor of one G. A. Langley, against E. W. Yoll and wife, the appellants herein.

The applicant, Hale, moved for the writ within five years from the date of the entry of the judgment, so that the question whether his right to a writ—assuming that, as a stranger to the record he is entitled to one at all—is barred by the limitation of five years within which a plaintiff may take out process to enforce his judgment, does not arise in the case. But as the grantee of a purchaser at the Sheriff’s sale under a decree of foreclosure, who was himself a stranger to the record, we think [437]lie' is not entitled to a writ of assistance, because lie is an entire stranger to the record, and the process, if issued, could not run. in his name. The case does not belong to the class of cases in which the plaintiff in a judgment purchases at his own sale. In such cases it has been held that the plaintiff, as a purchaser, is entitled to a writ of assistance to give effect to his judgment. (Montgomery v. Middlemiss, 21 Cal. 103.) But where the purchaser is a stranger to the record, the writ will not run in his name nor in the name of any of his grantees, immediate or remote. (People v. Grant, 45 Cal. 97.) In Wilson v. Polk, 13 Smedes and Marsh, 131, it was held that a purchaser of land at a commissioner’s sale, under a decree of a Court of Chancery, was not entitled to such a writ. In that case the purchaser applied to the Chancery Court for a writ. His application was denied, and ho appealed to the Supreme Court. That Court denied his appeal, upon the ground that it was not taken by a party to the suit. (See also, People v. Grant, supra.) And, says the Court, the same may be said of the application for the writ.

It is laid down in 2d Smith’s Chancery Practice, 244, that-the writ of assistance cannot regularly be issued at the instance of one not a party to the cause. The purchaser can only proceed by getting the vendor to make application for the process. Besides, if the applicant was a proper party, he is not entitled to the writ in this case ; for the record shows clearly that the appellants have been in the possession of the premises for more than five years since the decree of foreclosure, claiming to have been rightfully in under two alleged contracts of sale made between one Hirshfeld, for their benefit, and Hamilton, the grantee of the Sheriff. One of these contracts was made in 1875, and the other in 1877, and upon them Mrs. Voll has paid to Hamilton $1,040 and the interest as it became due, and all the taxes, assessments, and charges upon the property, and has also expended $3,500 in improving it. Hamilton does not deny the existence of the contracts between Hirshfeld and himself; nor the receipt of the money upon them. He denies only that he knew that the contracts were made for the benefit of Mrs. Voll. But he has permitted the Volls to remain in the undisturbed posses