1. A writ of assistance is an appropriate process to issue from
a court of equity to place a purchaser of mortgaged premises under
its decree in possession after he has received the commissioner's
or master's deed, as against parties who are bound by the decree
and who refuse to surrender possession pursuant to its direction or
other order of the court.
2. The owner of property mortgaged at the time suit is brought
for the foreclosure of the mortgage or the sale of the mortgaged
premises, whether he be the original mortgagor or his successor in
interest, is an indispensable party to the suit. A decree without
his being made a party will not bind him or parties claiming under
him, although the latter may have acquired their interests after
suit commenced, and a purchaser of the property at a sale under the
decree is not entitled to a writ of assistance to obtain possession
of the premises as against him or them.
Appeal from the circuit court for the Southern District of
Mississippi, from a decree awarding a writ of assistance to put the
purchaser in possession of mortgaged property sold under a decree
of the court and to remove the appellants from the premises.
The case arose in this wise:
In April, 1866, one Vaugh A. Hilburn, a resident of Mississippi,
executed to Hugh Allison and others a mortgage upon certain real
property situated in that state to secure the payment of his
promissory note of the same date for $12,000, payable in March of
the following year. In April, 1867, the mortgagor sold and conveyed
the premises for a valuable consideration to one Eliza Kyle, and
placed her at the time in possession. In May, 1871, Mrs. Kyle sold
and conveyed the property upon like consideration to one Terrell,
and he afterwards transferred a part of his interest to his
brother, and they were the parties whose removal the decree
directed.
In April, 1868, the mortgagees instituted suit in the Circuit
Court of the United States for the District of Mississippi to
foreclose the mortgage, or, more accurately speaking, to obtain a
decree for the sale of the mortgaged premises, and
Page 88 U. S. 290
the application of the proceeds of the sale to the payment of
the amount which might be found due to them on the note secured. In
this suit, Hilburn and his wife, who had joined with him in the
execution of the mortgage, were alone made parties. The case
proceeded to a final decree, confirming a master's report, finding
that $2,400 were due the mortgagees, and directing its payment
within a designated period, or, in default of such payment, that
the premises be sold by a commissioner appointed for that purpose
at auction to the highest bidder, that a deed be executed to the
purchaser, and that he be placed in possession of the premises. The
payment directed not being made, the premises were sold by the
commissioner and purchased by Hugh Allison, one of the mortgagees;
the sale was confirmed and a deed executed by the commissioner to
the purchaser. The two Terrells then in possession refused to
surrender the premises to the purchaser, and he thereupon applied
by petition to the court for a writ of assistance to be issued to
the marshal to place him in possession. The court granted the writ,
directing the officer to go upon the land and eject the Terrells
and place the purchaser in possession. Subsequently this writ was
revoked and an order was made that the Terrells show cause why the
writ should not issue on the petition filed. In response to this
order, the Terrells set up the sale and conveyance of the premises
to Mrs. Kyle by the mortgagor and his placing her in possession
before suit commenced, and the subsequent purchase by them from
her, producing at the same time the conveyance from the mortgagor
to her, and from her to one of them. And they insisted that Mrs.
Kyle was a necessary party to the foreclosure suit and that the
decree directing the sale of the premises was void as to her and as
to them as purchasers under her. No replication to the answer was
made, nor does it appear from the record that any question was
raised as to the correctness of its statements. The court, it would
seem, considered the facts disclosed insufficient, for it dismissed
the answer and made a decree that an alias writ of assistance
issue. From this decree the appeal was taken.
Page 88 U. S. 291
MR. JUSTICE FIELD, after stating the case, delivered the opinion
of the Court as follows:
A writ of assistance is undoubtedly an appropriate process to
issue from a court of equity to place a purchaser of mortgaged
premises under its decree in possession after he has received the
commissioner's or master's deed, as against parties who are bound
by the decree and who refuse to surrender possession pursuant to
its direction or other order of the court. The power to issue the
writ results from the principle that the jurisdiction of the court
to enforce its decree is coextensive with its jurisdiction to
determine the rights of the parties and to subject to sale the
property mortgaged. It is a rule of that court to do complete
justice, when that is practicable, not merely by declaring the
right, but by affording a remedy for its enjoyment. It does not
turn the party to another forum to enforce a right which it has
itself established. When, therefore, it decrees the sale of
property, it perfects the transaction by giving with the deed
possession to the purchaser. "If it was to be understood," says
Chancellor Kent,
"that after a decree and sale of mortgaged premises the
mortgagor or other party to the suit, or perhaps those who have
been let into the possession by the mortgagor
pendente
lite, could withhold the possession in defiance of the
authority of this Court and compel the purchaser to resort to a
court of law, I apprehend that the delay and expense and
inconvenience of such a course of proceeding would greatly impair
the value and diminish the results of sales under a decree.
[
Footnote 1]"
But the writ of assistance can only issue against parties bound
by the decree, which is only saying that the execution cannot
exceed the decree which it enforces. And that the owner of the
property mortgaged, which is directed to
Page 88 U. S. 292
be sold, can only be bound when he has had notice of the
proceedings for its sale, if he acquired his interest previous to
their institution, is too obvious to require either argument or
authority. It is a rule old as the law that no man shall be
condemned in his rights of property, as well as in his rights of
person, without his day in court -- that is, without being duly
cited to answer respecting them, and being heard or having
opportunity of being heard thereon.
Under the old theory of mortgages, when they were treated as
conveyances, the property passed to the mortgagee upon condition
that it should revert to the mortgagor if the obligation for the
security of which it was executed was performed, otherwise that the
mortgagee's interest should become absolute. The mortgage was in
terms the conveyance of a conditional estate, which became absolute
upon breach of the condition. But courts of equity at an early day,
looking beyond the terms of the instrument to the real character of
the transaction as one of security and not of purchase, interfered
and gave to the mortgagor a right to redeem the property from the
forfeiture following the breach, upon discharge of the debt secured
or other obligation, within a reasonable period. With this
equitable right of redemption in the mortgagor, a corresponding
right in the mortgagee to insist upon the discharge of the debt or
other obligation secured within a reasonable time, or a
relinquishment of the right to redeem, was recognized by those
courts. The mortgagee could therefore bring his suit to foreclose
the equity of redemption unless the debt or other obligation was
discharged within a reasonable time. To such a proceeding the
holder of the equity of redemption was an essential party, for it
was his right that was to be affected. His equity of redemption was
regarded as the real and beneficial estate in the land; it was
subject to transfer by him, and to seizure and sale on judicial
process against him. If it were transferred to another, such other
party stood in his shoes and was equally entitled to be heard
before his right could be cut off. It was certainly possible for
him to show that the mortgage was satisfied, or his liability
Page 88 U. S. 293
released, or that in some other way the suit could not be
maintained. The holder of the equity of redemption was therefore an
indispensable party to a valid foreclosure.
The old common law doctrine of mortgages does not now generally
prevail in the several states of the Union. In most of them, the
mortgage is not regarded as a conveyance, but is treated as a mere
lien or encumbrance upon the property as security for the payment
of a debt or the performance of some other pecuniary obligation.
But the owner of the property, whether the original mortgagor or
his successor in interest, has the same right to be heard
respecting the existence of the debt or other obligation alleged
before the property can be sold, which at common law the owner of
the equity of redemption had to be heard before the foreclosure of
his equity could be decreed. [
Footnote 2]
Applying these views to the present case, it is evident that the
learned judge of the court below erred. Mrs. Kyle purchased the
premises mortgaged before the institution of the suit for the sale
of the property, and was placed in their possession. She was
therefore an indispensable party to that suit, and was not bound by
the decree rendered in her absence. The two Terrells took, by their
purchase, whatever rights she possessed; if she was not bound by
the decree, neither are they bound. They stand in her shoes, and
have all the rights and equities with respect to the property which
she possessed. The writ of assistance could not be executed against
her or against them claiming under her, her rights not having been
affected by the decree. A writ of assistance can only issue against
parties to the proceedings, and parties entering into possession
under them after suit commenced
pendente lite. [
Footnote 3]
It is true that the two Terrells purchased the premises after
suit brought for their sale, but not from a party to such suit, or
from anyone who had acquired his interest subsequent to its
commencement. They do not come, therefore,
Page 88 U. S. 294
within the meaning of the rule which makes the decree bind
parties purchasing
pendente lite.
The decree awarding the writ must therefore be reversed and
the cause remanded to the court below with directions to dismiss
the petition of the purchaser.
[
Footnote 1]
Kershaw v. Thompson, 4 Johnson's Chancery 609;
see
also Montgomery v. Tutt, 11 Cal. 191.
[
Footnote 2]
See Goodenow v. Ewer, 16 Cal. 466, 467.
[
Footnote 3]
Frelinghuysen v. Cowden, 4 Paige 204;
Van Hook v.
Throckmorton, 8
id. 33;
Reed v. Marble, 10
id. 409.
