Citation Numbers: 164 A. 696, 112 N.J. Eq. 451
Judges: FALLON, V.C.
Filed Date: 3/5/1933
Status: Precedential
Modified Date: 7/5/2016
This matter is before the court on an application for a writ of assistance. The proofs herein impel me to determine that the application be denied. The demand for possession, on which the application for the writ is predicated, is addressed "to Charles E.S. Simpson and Edna B. Simpson, his wife," and is signed by the petitioners herein, who, as appears thereby, authorized one William A. Oliver to take and receive for them possession of the premises therein mentioned. The affidavit of Mr. Oliver, which is attached to said demand by way of proof of service thereof, recites that on the 9th day of December last he served upon Charles E.S. *Page 452
Simpson a written notice and demand for possession, and at the same time exhibited to him a deed by the sheriff of the county of Bergen to Dallas B. Pratt, and also an exemplified copy of the last will and testament of Dallas B. Pratt and letters testamentary thereon, and that said Charles E.S. Simpson refused to comply with the demand. Said affidavit evinces that the nameEdna B. Simpson, although typewritten therein, has a pen-mark drawn over same ostensibly to strike said name therefrom. The affidavit, as typewritten, evinces also that service of demand for possession was intended to have been made upon both Mr. Simpson and his wife. Why the notice and demand for possession was not served upon Mrs. Simpson has not been explained. The petition herein has attached thereto a "notice of motion" directed to Charles E.S. Simpson, notifying him of an application to be made for an order for a writ of assistance and for a writ of assistance to cause him to quit the premises described therein, to the end that the petitioners may obtain possession thereof. The petition recites inter alia a sale of the premises therein mentioned by the sheriff of the county of Bergen to Dallas B. Pratt on July 31st, 1929. Said purchaser died October 9th, 1929. It appears from the proofs herein that the sheriff's sale occurred more than three and one-half years ago. A court of equity will not afford relief by means of the issue of a writ of assistance unless the purchaser of premises at a judicial sale shall apply to the court therefor within a reasonable time after the sale. The application for the writ of assistance in the matter sub judice is not made by the purchaser at a sheriff's sale in mortgage foreclosure proceedings in the above-stated cause, but by persons who claim title to said premises as devisees under the last will and testament of Dallas Bache Pratt, probated in the New York county surrogate's court. It may be that the above-named purchaser at the sheriff's sale, and the testator aforesaid, are identical, but there is no adequate proof thereof herein. In Barton v. Beatty,