State ex rel. Wyandotte Lodge No. 35 of the Independent Order of Odd Fellows v. Evans

• Citation: 75 S.W. 914,176 Mo. 310
• Parties: THE STATE ex rel. WYANDOTTE LODGE NO. 35 OF THE INDEPENDENT ORDER OF ODD FELLOWS et al. v. EVANS, Judge, et al
• Decision Date: 30 June 1903
• Court: United States State Supreme Court of Missouri

75 S.W. 914

176 Mo. 310

THE STATE ex rel. WYANDOTTE LODGE NO. 35 OF THE INDEPENDENT ORDER OF ODD FELLOWS et al. v. EVANS, Judge, et al

Supreme Court of Missouri

June 30, 1903

Writ denied.

H. F Wieman, B. F. Pursel and Porterfield, Sawyer & Conrad for relators.

(1) Assuming that the proceedings are in equity (which relators deny) to foreclose a mortgage or deed of trust, the sale of the property made therein must be confirmed by the court. (2) The purchaser of property at a sale thereof made in a proceeding to foreclose a mortgage or deed of trust in a court of equity is not entitled to a writ of assistance or possession to put him in possession of the same, prior to the confirmation of said sale by the court. (3) The foreclosure proceedings in question are not proceedings in equity, but are under the statutes and at law. (4) The statutes authorizing the foreclosure of mortgages and deeds of trust make no provision for a judgment for possession, and that part of the decree of foreclosure in question granting the same is null and void. (5) The purchaser of property at a sale made by the sheriff in a proceeding to foreclose a mortgage or deed of trust under the statutes is not entitled to a writ of assistance or possession in that no provision therefor is made by the statutes. (6) A writ of prohibition is a proper remedy when the action of the circuit court exhibits evidences of excess of jurisdiction as well as when exhibiting absolute absence of jurisdiction. Prior to a discussion of the propositions set out above, it may not be amiss to briefly consider the nature of a writ of assistance or possession. Writs to obtain possession of property are often loosely referred to as writs of restitution, possession or assistance, without regard to the nature of the writ. Correctly speaking, these writs are separate and distinct. The object of a writ of restitution is to restore to a party the specific thing, or its equivalent, of which he has been deprived by the enforcement of a judgment; the object of a writ of possession is to give to one entitled thereto the actual possession of that which has been recovered in an action. Originally a writ of possession was used only in the commonlaw action of ejectment. Later, however, it has been used in a limited sense in proceedings in equity, but not in such proceedings to foreclose mortgages or deeds of trust where, as has been pleaded by respondents, the almost universal writs used are writs of assistance. Therefore bearing this fact in mind, and in view of the frequency with which these writs are designated as writs of assistance or possession without making any distinction between them, and in view of the fact that both terms are used in the pleadings in this court, we take it that it was not the intention of respondents to use said terms in their technical sense, and the writ which it was intended to obtain and which the court intended to grant, was a writ of assistance, and we shall so treat the same, though so far as the issues here involved are concerned it matters not by what name the particular writ in question is denominated. If a writ of assistance should not have issued much more manifestly should a writ of possession not issue. 16 Ency. Pl. and Pr., p. 744; vol. 18, p. 870. But what is a writ of assistance? It is "the ordinary process used by a court of chancery to put a party, receiver sequestrator or other person in possession of property when he is entitled thereto, either upon a decree or upon an interlocutory order. The most familiar instance of its use is where land has been sold under a decree foreclosing a mortgage; but it is also employed wherever a court of equity having jurisdiction of the person and property in controversy, has determined the rights of the litigants to the title or possession of its real estate." 2 Ency. Pl. and Pr., p. 975; Jones v. Hooper, 50 Miss. 510; Root v. Woolworth, 150 U.S. 401. Wherefore it appears that writs of assistance are peculiar to courts of chancery and their most familiar use is under decrees foreclosing mortgages and deeds of trust.

Warner, Dean, McLeod & Holden for respondents.

(1) The proceeding in the Jackson Circuit Court, wherein the decree of foreclosure was rendered, was a suit in equity. Brim v. Fleming, 135 Mo. 597; Hannah v. Davis, 112 Mo. 599; Weary v. Wittmer, 77 Mo.App. 546; Riley v. McCord, 24 Mo. 265; McClurg v. Phillips, 49 Mo. 315; Wolff v. Ward, 104 Mo. 127. (2) Writs of assistance are and have always been recognized as inherent in the jurisdiction and power of courts of equity in the foreclosure of mortgages as well as in other proceedings in equity relating to the title and possession of real property. Such writs are not only not unknown in the jurisdiction of this State, but are in fact expressly recognized by statutes and decisions. R. S. 1889, sec. 1598; Jones on Mort. (4 Ed.), sec. 1663; 11 Ency. Pl. and Pr., pp. 975, 978; Beach, Mod. Eq. Pr., sec. 897; Wiltsie on Mort. Forc., sec. 593; Root v. Woolworth, 15 U.S. 411; Montgomery v. Tutt, 11 Cal. 190; Kershaw v. Thompson, 4 Johns. Ch. 610; Woodsworth v. Tanner, 94 Mo. 128; Henderson v. Dickey, 50 Mo. 161; Baker v. St. Louis, 7 Mo.App. 429, 75 Mo. 671; Motz v. Henry, 54 P. 796; Watkins v. Jerman, 36 Kan. 464; 8 Am. and Eng. Ency. Law (1 Ed.), p. 273. (3) What has been said heretofore, it must be noted, has reference to the equity jurisdiction. The question of procedure is another matter. Hannah v. Davis, 112 Mo. 608; State ex rel. v. Johnson, 132 Mo. 108. Numerous other authorities might be cited from the courts in this State to the same effect, but there can be no question to the proposition that since the adoption of the code there has been in this State but one form of action for the enforcement or protection of private rights and redress or prevention of private wrongs, which shall be denominated a civil action. R. S. 1899, sec. 539. Therefore, in matters of procedure, whether the proceeding is an action at law or a suit in equity, the code and the statutes so far as they touch upon the matter or contain enactments governing the procedure expressly or by intent, must be followed. (4) The sale was in fact confirmed by order of court. Agan v. Shannon, 103 Mo. 666; Jones v. Manly, 58 Mo. 559; Grayson v. Weddle, 63 Mo. 538. (5) No showing has been made or can be made of an excess of jurisdiction to justify the issuance of a writ of prohibition. Under the authorities cited, the issuance of a writ of assistance was within the jurisdiction of the lower court. All parties have had a hearing upon two occasions and for any errors of law or fact appeal or writ of error are the only remedies. Having prima facie jurisdiction below, this court will not correct a mistaken exercise of it, even if it should now think any such mistake had been committed. State ex rel. v. Valliant, 100 Mo. 61; State ex rel. v. Withrow, 141 Mo. 80; Coleman v. Dalton, 71 Mo.App. 24.

VALLIANT, J. Burgess, J., dissents.

OPINION

In Banc

Prohibition.

VALLIANT J.

This is an original proceeding by which the relator seeks a writ to prohibit a judge of the circuit court in Jackson county issuing a writ of assistance to put the purchaser into possession of certain real estate which was sold under a decree of that court in a suit to foreclose a deed of trust.

The application for the writ of prohibition is based on two propositions: first, that the suit in which the foreclosure judgment was rendered was an action at law in which relator says no writ of assistance can issue; second, if relator is mistaken in the nature of that suit and it is to be adjudged a suit in equity, then it says the court has exceeded its jurisdiction in ordering the writ of assistance because there had been no confirmation of the sale which was essential to the passing of the title.

I. We have a statutory proceeding to foreclose a mortgage which has been adjudged to be an action at law. Section 4342, Revised Statutes 1899, provides that a mortgagee may file his petition in the circuit court against the mortgagor and those in possession of the property "setting forth the substance of the mortgage deed, and praying that judgment may be rendered for the debt or damages, and that the equity of redemption may be foreclosed, and the mortgaged property sold to satisfy the amount." In that brief quotation is defined the entire scope of the petition contemplated in the proceeding there authorized. The judgment to be entered in such a suit, if plaintiff is successful, is prescribed in sections 4350 and 4351 following, which is, if the mortgagor has not been summoned or does not appear, that the plaintiff "recover the debt and damages, or damages, found to be due, and costs, to be levied of the mortgaged property," and if the mortgagor has been summoned or appears, the judgment in addition to the above is to be "that if the mortgaged property is not sufficient to satisfy said debt and damages, or damages and costs, then the residue to be levied of other goods and chattels, lands and tenements of said mortgagor."

That is the statutory proceeding which this court from the beginning has decided to be an action at law as distinguished from a suit in equity. [Thayer v. Campbell, 9 Mo. 280; Riley v. McCord, 24 Mo. 265; Fithian v Monks, 43 Mo. 502; Pemberton v. Johnson, 46 Mo. 342.] The proceeding there contemplated deals with no uncertain parties and no equivocal titles. The parties are the mortgagee on the one side and the mortgagor and the man in possession on the other; the one holding the legal title with a defeasance, the other holding the equity of redemption and the possession; the only duties of the court are to ascertain the amount due on the mortgage debt and pass judgment that the property be sold for the amount so...