The clarion. [volume] (Jackson, Miss.) 1883-1888, 1886-12-22
F. G.. HENDERSON, USE, ETC.,
V.
MARY A. GIBSON.
S. 5. GIBSON,
ELLA MARSHALL, USE, etc.

LILA MA HchALl, USE, etc. ]
Appeal from the Chancery Court of
Warren county. Hon. Warren Cowan,
Chancellor.
J. NJ. Gibson, for the appellant.
Catchings q Dabney, for the appellee.
s. S. Gibson and others, tenants in
common, filed a bill for a partition of
certain property in Warren county. On
final hearing the chancellor decreed a
pan ition and ordered that the several
tenants pay ratably one NJ, Marshall an
attorneys fee for conducting the parti-
ton proceedings land it was further order
ed that in case any one of them failed so
to do that his interest in the land be sold
to satisfy his part of the fee. S. S. Glib
son having failed to pay his portion of
the fee, his part of the land was sold by
a commissioner and bought in by Mrs.
Ella Marshall. This sale was duly CON
firmed. Mrs. Marshall then sold the
land to Mrs. Mary A. Gibson. S. S.
Gibson having refused to give up the
land to Mrs. Gibson, Mrs. Marshall filed
this petition praying that the chancery
court issue a writ of assistance to put
Mrs. Gibson in possession. Thereupon
one f. G. Henderson, for the use of
George III. Dorsey, filed petition in
which he set out that one George NJ
Klein held deed of trust on the land
from 5. S. Gibson, prior to the purchase
of Mrs. Marshall; that petitioner had
attached Klein and garnished Gibson
and had since obtained judgment against
Klein, and that the land was liable for
his judgment; and that Klein had not
been made party to the suit concern
ing this land. The petition prayed that
the petitioner be subrogated to the rights
of Klein; that the lands be sold and the
proceeds be first applied to the payment
of his claim. On motion this petition
of Henderson was stricken from the
files. On the final hearing the chan
cellor granted the prayer of the petition
of Mrs. Marshall and ordered that a
writ of assistance be issued command
ing the sheriff instanter to place said
Mrs. Ella Marshall, for the use of Mrs.
Mary A. Gibson, in possession of the
land mentioned in said petition" +. G..
Henderson and 5. 5. Gibson appealed.
COOPER, c. j., delivered the opinion of
the Court.
The petition of Henderson was prop
erly dismissed. He is a stranger to the
record; is neither in possession of the
land nor entitled to possession; that be
has debt against Klein, and has sued
on it and garnished the defendant who
is indebted to Klein and has given a
mortgage to secure Klein, gives him no
standing in this cause. His right to
proceed in the proper manner to enforce
his security against the land, if any he
has, will not be impaired by any change
in the possession of the land which NAV
be made by any order in this cause.
Whether the writ of assistance should
issue in favor of the grantee or the pur-
chaser is a question not free from diff
Guilty. On the one hand it may be said
that the decree is never entirely exc
cuted until the possession of the proper
ty is changed, and on the other that a
stranger to the record is not entitled to
invoke the aid Of the court. So far as we
are advised the question has never been
determined by any court of last resort
in America. In People V. Green, 45
Cal, 81, it was decided that under a
statute of that State giving the writ of
assistance to the ''hoider" of tax deed,
the grantee of the purchaser was not
entitled to invoke the writ, the court
saying, that "holder" meant the grantee
in the deed executed by the sheriff. In
City of San Jose V. Foster, ID, BIC, it
was said that the statute only intended
to confer the benefit of the writ on such
persons as under the established rules
of chancery practice would have been
entitled to its aid if they claimed under
decree. and that because in chaneery
the writ would not run in favor of the
grantee of purchaser, so also ought
the statutory writ to be denied to such
person. But when in Langley v. Voll,
"a Cal, 435, the writ was asked by the
grantee Of purchaser at foreclosure
sale, the court having decided that being
a stranger to the record it could not be
granted, it upon reconsideration with
drew 80 much of its opinion as decided
that question, and as relief was denied
upon another ground, expressly left the
point for decision when a case should
arise in which it should be necessary to
decision.
In VanHook V. Throckmorton, 3
Paige, Ch., %, the chancellor said,
There is no settled practice of this
court, emitting purchaser from the
purchaser at a masters sale, as matter
of right, to the assistance of the court
to obtain possession of premises which
his grantor had purchased under the
decree, and such assistance should not
be given to him when there is, as in this
case, very strong probability that in
Justice would be done to the party in
possession by such proceeding In In
su-ance Company v. Rand, s Towards
Pr. Repts., 35, the Supreme Court held
on this Statement. of the chancellor.
''that in plain case, where no injustice
would be done the person in possession,
the court had the power, and would
exercise it in favor of second pur-
chaser To the same effect is the case
in Towards Pr.
According to the English practice, it
seems that the purchaser from the mas
ter was considered as a stranger, and
because he was, could not apply for the |
writ, but that if the complainant would |
apply for it for his benefit it was as |
motion of course
Smiths Chcy Prac., IA.
And at one time it was said in this |
State that the writ could not be applied |
for by the purchaser at the masters sale |
because he was not party to the record. |
Wilson v. Polk, Ii s. & NJ, 49,
But in Hayden v. Redus, 40 Miss,