BETTS a. BIRDSALL

BETTS a. BIRDSALL. New York Superior Court ; Special Term, September, 1860. Foreclosure.—Wbit of Assistance. Upon a sale in foreclosure, the court gives possession to the purchaser as against all persons who are parties to the suit, or who came into possession under either of them pending the suit, but does not undertake to remove persons who go into possession after the purchaser has received, his deed, and conveyed the premises to another. One who enters over fifteen months after the sale, is not to be deemed as having entered pending the suit, and cannot be removed by a writ of assistance, though he entered under a party to the suit.* Motion for a writ of assistance to aid in ousting the defendants, or tenants under them, from certain premises to which the petitióner claimed the right of possession under a judicial sale. John G. Vose, for the motion. Nelson Smith, opposed. The purchaser is not entitled to a writ of assistance against a person who, pending the suit, came into possession under one who was in possession at the commencement of the suit, neither person having been made a party. (Chancery, 1839, Van Hook a. Throckmorton, 8 Paige, 33.) The power of the court to give possession to the purchaser only extends to those persons who are parties to the suit, or persons who have come into possession under, or with assent of those who are parties, subsequent to the commencement of the suit. (Chancery, 1843, Boynton a. Jackway, 10 Paige, 307 ; S. C., 2 N. Y. Leg. 06s., 248.) There is no settled practice in the Court of Chancery entitling a subsequent purchaser from the purchaser at a master’s sale, as a matter of right, to a writ of assistance. And assistance should be denied, in such case, where there is a strong probability of injustice to the person in possession. (Chancery, 1839, Van Hook a. Throckmorton, 8 Paige, 33.) The purchaser’s grantee who has exhibited, in addition to the sheriffs deed and the order, the purchaser’s deed to him, duly acknowledged and recorded, has the same right to a writ of assistance that the purchaser has, unless it should appear that granting the writ would do injustice to the party in possession. [8 Paige, 35.] (Supreme CL, Sp. T., 1853, N. Y. Life Ins. Co. a. Band, 8 Sow. Pr., 35; affirmed, Oen. T., 1853, 8 lb., 352; approved in The Same a. Cutler, 9 lb., 407.) After foreclosure and sale of mortgaged premises, a tenant in possession, who was made a party to the foreclosure, is bound to attorn to the purchaser at the sale, notwithstanding that he holds under an unexpired lease executed by the mortgagors prior to the mortgage, and if he refuses, may be removed by writ of assistance. It is not material that the original lessee, from whom the lease came by assignment to the tenant in possession, was not made a party to the foreclosure. (Supreme Cl., Sp. T., 1853, Lovett a. German Beformed Church, 9 Sow. Pr., 220.) The power of the court to enforce delivery by a writ of assistance, is superseded by an agreement between the purchaser and the party in possession to re-convey on terms. (Chancery, 1844, Toll a. Hiller, 11 Paige, 228.) An equitable claim upon the premises, set up by judgment-creditors of the party in possession, who do not show any claim to the possession as against the purchaser, cannot be considered on motion for a writ of assistance, nor is it a ground for setting aside the writ. (Supreme CL, Sp. 21,1853, 11. Y. Life Ins. & Trust Co. a. Band, 8 Sow. Pr., 35 ; affirmed, Cen. 21, 1853, 81b., 352.) Where the judgment or decree contains an order that the party, or a purchaser, be let into possession,—e. g., as in the usual judgment in foreclosure,—a motion for a writ of assistance may be made ex-parle. A defendant in possession must be presumed cognizant of the judgment; all that he can further require, is evidence of the title of the party claiming. If the sheriff’s deed and the order confirming the sale is exhibited, and demand of possession made, it is sufficient: and if he does not comply, he is not entitled to notice of motion for the writ. lb. (Approved in The Same a. Cutler, 9 lb., 407.) Il seems, that a writ of assistance is in the nature of an execution upon the judgment, and under the Code, may issue without an order, lb. As to the former practice, which was more circuitous, see Dick., 617 ; 1 Bro., 375 ; S. C., 1 Cox, 101. Kershaw a. Thompson (4 Johm. Oh., 609); Ludlow a. Lansing (Hopk., 281); 1825, Valentine a. Teller (lb., 422); Devaucene a. Devaucene (1 fflw., 272). [MAJORITY — Bosworth, J.] Bosworth, J. In this and another action against the same defendants, decree of foreclosure and sale was made as early as the 13th of October, 1858. The premises were sold under the decree on the 6th of June, 1859, and Joseph H. Gray became the purchaser, and received the referee’s deed the same day. He now petitions for a writ of assistance to remove Birdsall and one Miller, on the allegation that they are in possession, and refused to give up after demand made, and exhibition of the deed. Miller makes affidavit that John E. Gray conveyed the premises to John G. Vose by deed, dated January 21, 1860. That Miller was not a party to either suit, and entered into possession about the 1st of May, 1860, and not before. That he hired the premises of said C. A. Birdsall for one year, believing her to be the owner, and has paid all of the agreed rent except $50, which is payable the 1st of May next. I think the court has no power to grant such a writ to remove Miller. The usual form of a decree is, that any of the parties in this cause who may be in possession of said premises, or any part thereof, and any persons who, since the commencement of this suit, have come into possession under them, or either of them, deliver the possession thereof to the purchaser or purchasers, &c. (3 Hoffm. Ch., 4.) The court gives possession to the purchaser, as against all persons who are parties to the suit, or who came into possession under either of them, while the suit is pending. It does not undertake to remove persons who go into possession after the purchaser has received his deed and conveyed the premises to another. Miller also makes affidavit that he has been informed by said Vose, that after said deed to him, he had sent a man and took possession of said premises. The object of the writ, and the consideration on which it is granted, is that when the court makes a sale, and transfers the title, it will take the possession from a party whose rights have been determined by the suit in which the sale was ordered. A person found in possession when the purchaser obtains his deed, and who went into possession under some one of the parties while the suit was pending, is treated in this respect as if a party. Although Miller entered under C. A. Birdsall, yet, as he entered over fifteen months after the sale, he cannot be regarded as having entered pending the suit. If he may be removed for the benefit of the present owner, I do not see why any person who enters ten or fifteen years hence under any person who was a party to the suit, may not be removed by a writ of assistance for the benefit of some future grantee of the premises. (Frelinghuyson a. Colden, 4 Craige, 204; 4 Johns. Ch., 609; 1 Hop., 231.) The motion must be denied as to Miller, but as he shows no right to be in possession, without costs.