Brackensieck v. Vahle

Opinion of the Court, the

Hon. Carroll C. Boggs, Judge.

This was an action of forcible detainer, brought by the appellant, under the sixth clause of Section 2, of Chap. 57, Eevised Statutes, entitled “Forcible Entry and Detainer,” which provides that, when lands have been sold under the judgment or decree of any court in this State, and the party to such judgment or decree refuses, after the expiration of the time of redemption, and after demand in writing, to surrender possession to the person entitled, that such person entitled may recover possession by an action of forcible entry and detainer. The appellant received a deed for the premises herein involved, made by the master in chancery of the Adams Circuit Court, by virtue of a sale under a decree of foreclosure, to which the appellees herein were parties defendant. The appellees refused to surrender the premises to him, though he served upon them a demand, in writing, for the possession, as required by the statute. The decree upon which the deed was based, provided that, in case of a sale of the premises and execution of a master’s deed to the purchaser, that “the grantee in such deed should have possession of the premises conveyed, and that the parties to the cause who should have possession of the premises, or any person coming into possession under them since the commencement of the suit, should deliver and surrender possession of such premises to the grantee in the master’s deed, upon the production of such deed of conveyance.”

In order to obtain a writ of assistance from the court rendering the decree, it is contended that the grantee in the master’s deed would be required, before applying for such writ, to serve upon the party in possession a copy of the decree and to produce and exhibit the deed from the master, and it is insisted that like steps must be taken before an action of forcible detainer to recover the possession can be instituted. The court below entertained this view of the law and so ruled the result, being a determination of the action against the appellant. We think the appellant had two concurrent remedies, by either or both of which he might proceed to secure possession of the premises.

One remedy was by a writ of assistance to be obtained from the court rendering the decree, and, of course, upon compliance with,its requirements; the other, by the action of forcible detainer under the statute. To obtain the benefit of the statutory remedy, he was only required to comply with the statute ; that is, make written demand before instituting the action. Though, to succeed upon the trial of the cause in forcible detainer, he might find it necessary to produce his deed in evidence, yet the statute does not require such production as a condition precedent to the institution of the suit, nor was he required to so produce it in advance, because it might have been necessary, under the decree, to have done so before a writ of assistance issuing out of chancery could have been awarded him.

The appellant complied with the requirements of the statute, and it was error to require more for him than the statute required.

For this" reason the judgment must be reversed and the cause remanded.