Ray v. Trice
| Citation | 49 Fla. 375,38 So. 367 |
| Parties | RAY v. TRICE. |
| Decision Date | 18 April 1905 |
| Court | United States State Supreme Court of Florida |
In Banc. Appeal from Circuit Court, Pasco County; J. B. Wall Judge.
Writ of assistance, on the application of John Trice, receiver of the St. Petersburg State Bank, to Walter Ray. Judgment for petitioner, and defendant appeals. Reversed.
See 37 So. 582.
Syllabus by the Court
1. Before a writ of assistance should issue to put the purchaser at a foreclosure sale in possession of the property, as against one in possession claiming to be the owner or claiming the right of possession, notice should be given of the application for the writ. If the writ issues without notice, and the party is dispossessed under it, the court granting the writ should upon his motion grant an order restoring the possession to him.
2. A party in possession of property sold at a foreclosure sale claiming to own same by conveyances made pending the foreclosure suit, cannot be lawfully dispossessed under a writ of assistance in favor of the purchaser at such foreclosure sale, issued without notice to him, especially where the writ runs against another party; and, if he is dispossessed under such circumstances, the court granting the writ should upon his application restore the possession to him.
COUNSEL H. L. Anderson, for appellant.
Gunby & Gibbons, for appellee.
On March 15, 1903, a petition was filed in the circuit court of Pasco county alleging that on January 5 1903, certain real estate in Citrus county was sold by a master in chancery under a decree of foreclosure rendered by the circuit court of Pasco county, in a cause wherein the St Petersburg State Bank, a corporation, was complainant, and Globe Phosphate Mining & Manufacturing Company, a corporation, and others, were defendants; that the premises were purchased by appellee; that the sale was confirmed by the court on February 20, 1903; that, in compliance with the order of confirmation, a deed was executed by the master on February 27, 1903, conveying said lands to appellee; that appellee demanded possession of the premises, and exhibited the master's deed to one John O. Howard, who was in possession thereof, claiming to hold same under authority from one R. B. Clark as receiver, but that Howard refused to deliver possession. A writ of assistance was prayed to be directed to the proper authorities, commanding them to place appellee in possession of the premises. An affidavit was appended to this petition, made by the attorney for appellee, stating that on March 2, 1903, one John O Howard was in possession, claiming to hold such possession for one R. B. Clark as receiver, and Walter F. Ray, who claimed under title from the mortgagor; that affiant exhibited the master's deed to Howard, and demanded possession of the premises, but Howard refused to deliver such possession. The court issued a writ of assistance, reciting the allegations of the petition, and that one John O. Howard had detained and kept possession of the premises in manifest contempt of the court, and commanded all and singular the sheriffs of the state of Florida to place appellee in full possession of the premises without delay. No notice of the application for this writ appears from the record to have been given to Clark, Howard, Ray, or any other person.
The writ came to the hands of the sheriff of Citrus county, who made return on March 18, 1903, that the premises were then in possession of one Richard B. Clark, who held same under an order appointing him receiver, made by the circuit court of Citrus county in a cause there pending, wherein John W. Williamson and other stockholders were complainants and the Globe Phosphate Mining & Manufacturing Company (the mortgagor in the other case) was defendant; that he (the sheriff) had on January 7, 1903, put said Clark in such possession under process issued by the circuit court of Citrus county, issued in the cause aforesaid, directing him so to do; and that he declined to execute the last writ upon the ground that the possession of Clark, receiver, was merely the custody of the law.
On April 29, 1903, the sheriff made a further return, stating that the writ had come to his hands again, with a peremptory order from the judge of the Sixth Circuit to execute it; and that in obedience...
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