White v. White

California Supreme Court Jul 31, 1900 No. S. F. No. 1380Published

Before: Haynes

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Holding. The court held that the issuance of a writ of assistance was proper because the appellant's leases had expired, leaving him with no legal right to possession of the property, and the court had jurisdiction to enforce its judgment through the receiver.

Issues

Whether the court had jurisdiction to order a receiver to sell property to satisfy a money judgment in a divorce action.
Whether a writ of assistance is appropriate when the party in possession has no remaining legal right to the property.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The fact that the property was in the hands of the court, through its receiver, made an order of sale appropriate, or at the least it was not beyond the jurisdiction of the court to enforce its judgment in that manner”

“conceding their validity, they expired by their express limitation before the order appealed from was made, and it was not in the power of the lessor to renew or extend them”

Synopsis

Alimony—Enforcement—Sale of Leased Premises—Writ of Assistance.—In a suit for divorce an interlocutory • decree was entered, granting respondent a divorce from her husband, and enjoining the latter from disposing of his property before final decree. Thereafter a receiver was appointed to take charge of all of his property. In the final decree it was provided that the wife, “do have and recover the sum of one hundired thousand dollars,” and that the receiver be continued and directed to take all necessary steps to collect the said sum. An order was made directing him to sell certain property, which the husband had leased after the injunction, but before the receiver’s appointment, and in accordance therewith the property was sold to respondent. Held, on petition for writ of assistance to gain possession, that, though the judgment was mot expressly made a charge on the husband’s land, the court had jurisdiction to direct the sale, since the property was under its control by virtue of the receivership.

Alimony—Enforcement by Sale of Leased Land—Appeal.— Respondent was granted a divorce from her husband, and awarded $100,000 alimony. Certain land which the husband had leased to his nephew was sold to her in part satisfaction of the said sum. Before the expiration of the lease she petitioned for a writ of assistance to gain possession, but the order granting the writ was not made until after the lease had expired. Held, on the nephew’s appeal from the order, that it would not be disturbed by a court of equity, since he had no further right of possession, and therefore could not have suffered injury.

Alimony—Enforcement by Sale of Leased Land—Writ of Assistance.—Respondent was granted a divorce from her husband., and awarded $100,000 alimony. Certain land, which the husband had leased to his nephew, was sold to her in part satisfaction of the said sum. She petitioned for a writ of assistance to gain possession, and after expiration of the lease the nephew asked leave to file an amendment to his answer, setting out a declaration of homestead filed by respondent, for the benefit of herself and husband, upon land covered by the lease. He did not allege that he had acquired any interest in the homestead after the expiration of the lease. Held, that leave should be denied, since the nephew’s relation to the property would not authorize him to litigate the question of respondent’s title.

Writ of Assistance—Tenant in Possession.—On Petition for a Writ of assistance to gain possession of land, the tenant in possession cannot question the petitioner’s title.

HAYNES, C. This appeal is from an order made upon the petition of the respondent, Frankie White, granting her a writ of assistance to obtain possession of certain real estate then in the possession of appellant, Rohrbough, who claims under a lease from the plaintiff, George E. White. The following statement of facts is condensed from said petition: In December, 1885, George E. White commenced a suit against his wife, Frankie White, to obtain a divorce. She answered, and also filed a cross-complaint, with the usual prayer for counsel fees, expenses and permanent support. On May 15, 1889, an interlocutory decree was entered upon said cross-complaint granting her prayer for divorce, and enjoining the plaintiff, George E. White, from in any manner disposing of or affecting the community property or his separate property, except that the plaintiff should “be permitted to pursue and carry on his ordinary business”; this injunction to continue until the further supplemental and final decree should be entered and carried into effect. This interlocutory decree was recorded in May, 1889, in the counties of Mendocino, Trinity and Humboldt, and copies thereof served upon the plaintiff and upon Rohrbough, the applicant herein. On February 9, 1894, a motion was made by Mrs. White for the appointment of a receiver to “take charge, supervision, and possession” of all the property, real and personal, of the plaintiff, of which motion said Rohrbough and White had notice; and on June 18, 1894, such receiver was appointed. On June 9, 1894, the plaintiff, George E. White, executed two certain leases of large quantities of land ,to said [501]Rohrbough, the nephew of said White; and it is alleged that the making of these leases was in violation of said injunction, and that both were adjudged guilty of contempt of court, and were punished therefor. It is further alleged that on February 9, 1895, a final decree was entered in White v. White, which adjudged that Frankie White “do have and recover from the said George E. White the sum of one hundred thousand dollars, in lawful money of the United States,” and further provided that the receiver be continued and directed to. prosecute all suits and actions, “and that he take all legal measures and proceedings to enforce and secure the collection of the unpaid monthly allowance theretofore awarded and then due your petitioner under the interlocutory decree hereinbefore referred to, and also the said sum of one hundred thousand dollars awarded your petitioner by said final decree”; that on April 12, 1895, an order was made directing the receiver to sell the property mentioned in said leases under said judgment; that on July 11, 1895, the receiver sold the same to the petitioner for the sum of $70,000; that on April 18, ”1896, a return of said sale was made, and afterward, on due notice, was confirmed, and the receiver conveyed •to the petitioner all the right, title and interest of George E. White in and to all the lands described in said leases to Rohrbough. These leases were for the period of eighteen months from April 9, 1895, with the privilege of an additional year. Appended to the petition were copies of the leases, and certain affidavits touching the demand made by the petitioner for possession. Rohrbough demurred to said petition. His demurrer was overruled, and he then answered. Appellant’s answer denied that he knew or had any notice of the application for the appointment of a receiver at the time the leases were made, and denied that the making of these leases was not within the usual and ordinary business of George E. White, or was in violation of said injunction. He also alleged that he was the owner of a certain parcel of said land, containing one hundred and twenty acres, particularly described, and also alleged that petitioner had surrendered and conveyed to the Petaluma Savings Bank and to H. T. Fairbanks on March 21, 1896, portions of said lands embraced in her said petition, schedules of which, marked “A” and “B,” were attached to his answer, and which he then held under leases from said savings bank and said Fairbanks. Said ap

White v. White

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