Hagerman v. Heltzel

• Decision Date: 09 September 1899
• Citation: 58 P. 580,21 Wash. 444
• Parties: HAGERMAN et al. v. HELTZEL et al. In re FRAZER. MEYERS v. FRAZER.
• Court: Washington Supreme Court

58 P. 580

21 Wash. 444

HAGERMAN et al. v. HELTZEL et al.

MEYERS v. FRAZER.

Supreme Court of Washington

September 9, 1899

Appeal from superior court, Whitman county; William McDonald, Judge.

Action by Frank Hagerman and others to foreclose a mortgage executed by Martin L. Heltzel and others. Under the certificate of sale, plaintiffs put one Henry Meyers in possession. Defendants transferred their equity of redemption to W. G Frazer, who redeemed the property, and applied for a writ of assistance against said Meyers. From an order overruling a demurrer to the petition and granting the writ, Meyers appeals. Affirmed.

Chadwick & Bryant, for appellant.

Trimble & Pattison, for respondent.

REAVIS J.

The main action was for the foreclosure of a mortgage executed by Heltzel and wife, defendants, and to foreclose all claims of the other defendants mentioned. Under the sale ordered by the decree of foreclosure the plaintiffs became the purchasers of the premises described in the mortgage and a certificate of sale was issued by the sheriff. The plaintiffs thereupon applied for a writ of assistance to put them in possession of the mortgaged premises, which was issued by the court, and the sheriff thereafter placed the plaintiffs in possession of the premises under the writ. Thereafter the plaintiffs transferred the certificate of sale to one Mohney who put the appellant, Meyers, in possession of the premises. After the mortgagors, Heltzel and wife, were put out of possession, they transferred the equity of redemption to Frazer, the respondent. Respondent, prior to the expiration of the time for redemption, duly made application to the sheriff to redeem the premises from the sale under the decree of foreclosure, giving notice to the purchasers and their assigns of his intention to redeem, and thereafter submitted proof of his right to redeem, and paid to the sheriff the sum necessary for redemption, and the sheriff issued to Frazer a certificate of redemption. Frazer thereafter made demand upon Mohney and Meyers for possession of the premises, exhibiting to them his certificate of redemption. Meyers refused to deliver possession, and Frazer applied to the superior court for a writ of assistance to place himself in possession of the premises, and upon a hearing the superior court ordered that the writ issue. At the hearing upon the order to issue the writ, appellant demurred generally to the petition for the writ. The petition was entitled in the original action. The court overruled the demurrer, to which order overruling the demurrer and granting the writ of assistance the appellant excepted, and assigned such ruling as error.

The writ of assistance is described in 2 Enc. Pl. & Prac. p. 975 as: 'The ordinary process used by a court of chancery to put a party, receiver, sequestrator, or other person into possession of...