Stanley v. Sullivan

• Decision Date: 17 April 1888
• Citation: 37 N.W. 801,71 Wis. 585
• Parties: STANLEY v. SULLIVAN.
• Court: Wisconsin Supreme Court

71 Wis. 585

37 N.W. 801

STANLEY

v.SULLIVAN.

Supreme Court of Wisconsin.

April 17, 1888.

Appeal from circuit court, Chippewa county; S. H. CLOUGH, Judge.

Application for a writ of assistance by J. C. Stanley against Daniel Sullivan. The application was refused, and plaintiff appeals.John Randall, for appellant.

Stafford & Connor, for respondent.

TAYLOR, J.

This was an application by the appellant for a writ of assistance to put the applicant into the possession of a parcel of real estate which he claims had been sold on an execution issued upon a judgment in an action for divorce brought by Mary J. Sullivan, as plaintiff, against her husband, Daniel Sullivan, the respondent in this appeal. Upon such execution sale a sheriff's deed had been issued to the applicant. Possession of the premises had been demanded of the defendant, Daniel Sullivan, by the applicant, and he refused to surrender the possession to him. The respondent resisted the motion for the writ on the ground that the property sold on the execution was his homestead at the time judgment was rendered and docketed, as well as at the time of the sale thereof upon said execution. The circuit court refused to order the writ to issue, but without prejudice to the right of the applicant to bring an action of ejectment to recover said lands. The application for the writ was made under the provisions of section 3025, Rev. St. 1878. Previous to the enactment of said section, in 1878, the courts had never had the right, or, if they had, had never exercised the right, to issue a writ of assistance to put a purchaser of real estate upon an ordinary execution sale into the possession of the real estate so purchased by him. Previous to the passage of this law the purchaser's only remedy in this state was by action of ejectment against the party in possession, if he refused to surrender the possession. Courts of equity have from the earliest times exercised the right to issue the writ of assistance in actions in equity brought for the purpose of determining the rights of the litigants to the title or possession of real estate, after judgment declaring such rights, as well as in cases for the foreclosure of or redemption of mortgages. In such cases the court of equity having jurisdiction of the persons and property in controversy have, after determining the rights of the parties litigant to the title or possession of real estate, rightfully assumed the power to enforce their judgments by the writ of assistance to transfer the possession, instead of turning the party over to a court of law to recover such possession. Roberdeau v. Rous, 1 Atk. 543; Penn v. Lord Baltimore, 1 Ves. Sr. 444; 2 Eden, Inj. 261, (Wat. Ed. vol. 2, p. 425;) Stribley v. Hawkie, 3 Atk. 275; Huguenin v. Baseley, 15 Ves. 180; Garretson v. Cole, 1 Har. & J. 387;Buffum's Case, 13 N. H. 14;Devaucene v. Devaucene, 1 Edw. Ch. 272;McKomb v. Kankey, 1 Bland, 363; Kershaw v. Thompson, 4 Johns. Ch. 610;Valentine v. Teller, 1 Hopk. Ch. 422;Diggle v. Boulden, 48 Wis. 477, 4 N. W. Rep. 678;Schenck v. Conover, 13 N. J. Eq. 220. In these cases the writs only issued when the rights of the respective parties to be affected by it had been fully determined by the judgment in the action. In the case of Schenck v. Conover, supra, it is said: “It is scarcely necessary to add that the exercise of the power rests in the sound discretion of the court. It will never be exercised in a case of doubt, nor under color of its exercise will a question of legal title be tried or decided.” This limitation upon the exercise of the right to issue a writ of assistance is recognized by all the authorities. See Langley v. Voll, 54 Cal. 435;San Jose v. Fulton, 45 Cal. 316;Henderson v. McTucker, Id. 647; Barton v. Beatty, 28 N. J. Eq. 412;Vanmeter v. Borden, 25 N. J. Eq. 414;Thomas v. De Baum, 14 N. J. Eq. 41. We think the rule under the statute is no broader than the rule at common law when applied to cases coming within the statute. The statute extends the power to issue the writ to cases not coming within the common-law rule, but it was clearly not intended that the power should be exercised in a case where there was a bona fide contest as to the right of the purchaser at the execution sale to the possession of the lands under such sale. The statute starts out by declaring that “whenever a title shall have been perfected in any person to any real estate sold by virtue of an execution, or to any part thereof, or interest therein, and the person against whom such execution issued, or any other person claiming under him by title arising subsequently to the docketing of the judgment upon which it issued, shall be in possession of any such real estate, or part thereof, or interest therein,” etc. We think it is evident that this section, read in connection with our law in regard to homestead exemptions, could not have been intended to compel the court to issue the writ of assistance in favor of the purchaser of such exempted homestead, upon an execution issued against the owner of the homestead in possession thereof at the time of its issue and sale, and at the time the writ was applied for. The letter of the statute might be said to apply to such a case, but it seems to us very clear that such is not the spirit or meaning of the act. In the case of the sale of the homestead, there would, under the law exempting it, be a failure on...