Trammel v. Simmons , 8 Ala. 271 ( 1845 )

COLLIER, C. J.

The plaintiff’s counsel have called our attention to what are supposed to be errors in the record of the cause between Mathews and Kimmey. It is enough to saj'-, in answer to these, that even if they were available in a direct proceeding between the parties to the decree, they cannot be noticed at the instance of a stranger.

True, the decree directs, that the purchasers at the sale by the Register, should be let into possession, but, if this order can operate, so as to warrant the adoption of coercive measures, it cannot affect any one but the mortgagor himself, or, possibly, his tenant. In Creighton, et al. v. Paine and Paine, 2 Ala. Rep. 158, it was held, that the Court of Chancery has power to put a person in possession, who purchases at a sale made under its decree, when it is withheld by the defendant, or any one who comes in pendente lite. In that case we pointed out the course of procedure proper to be pursued, upon an application being regularly made by the purchaser. It was there said, that if, on examination, the Chancellor is satisfied the possession is withheld by one who is concluded by the decree, he will make a decretal order, (unless the decree of foreclosure directed it,) to deliver the possession to the purchaser.

If this order is disobeyed, an injunction will issue, commanding the party in possession forthwith to deliver it up, then upon a refusal being duly made known, a writ of assistance to the sheriff, to put the purchaser in possession, issues of course, on motion.

The recital of the facts in the present case, very clearly shows that the proceedings complained of were not regular. But there is no order operating directly upon the party ejected, and consequently no action of the Chancellor, which can at his instance be revised on error. In Creighton, et al. v. The P. & M. Bank, 3 Ala. Rep. 156, the person in possession made himself a party, by appearing and resisting the order, and it was held that it might be reviewed at his instance. Here, there is nothing but the notice to Trammel, the affidavit of that fact, and his refusal; the application to the Register for the writ of assistance,the writ and its execution, against which he can ask relief. It is' clear that the remedy of the plaintiff in error is not in this Court, he should have applied to the Chancellor, whose powers are ample, for the correction of any irregularity in the issuing or executing process by its ministerial officers.

The writ of error is consequently dismissed.