POSSESSION. See article TITLE, OWNERSHIP, AND POSSESSION. POSSESSION, WRIT OF. BY HENRY STEPHEN. I. DEFINITION, USE OF WRIT, AND SCOPE OF ARTICLE, 744. 1. Definition, 744. 2. Use of Writ, 745. 3. Scope of Article, 745. II. FORM AND CONTENTS OF WRIT, 745. III. ISSUANCE OF WRIT, 747. 1. Limitation, 747 2. Writ Issuing of Course, 747. 3. On Motion, 748. IV. CONTROL OF WRIT, 749. V. EXECUTION, 751. 1. Time of Making, 751. 2. How Effected, 751. 5. Sufficiency Of, 755. VI. RELIEF AGAINST WRIT AFTER EXECUTION, 756. VII. ALIAS AND PLURIES WRITS, 758. CROSS-REFERENCES. As to Writs of Restitution see article RESTITUTION, and see the General Index to this work. 1 I. DEFINITION, USE OF WRIT, AND SCOPE OF ARTICLE — 1. Definition. A writ of possession or habere facias possessionem is one which directs a ministerial officer to give one who is entitled thereto the actual possession of what has been recovered in an action.2 1. Direction to Sheriff. The writ is a judicial one, and at common law is always directed to the sheriff of the county in which the premises are situate, or, in case of his inability or incapacity to execute it, to the coroner. 4 Inst. 271. 2. 3 Black. Com. 413. Interference with Possession of Receiver.-Where the judgment is against the receivers of a railway company, it is proper for the court to withhold a writ of possession as far as the receivership is concerned. Abbey v. In - Originally the writ was used 2. Use of Writ—A Common-law Writ. only in the common-law action of ejectment, to place a successful plaintiff in possession of the fruits of his judgment, and never issued from a court of chancery.2 Modern Use of Writ. Under the modern practice, however, the writ in many jurisdictions is granted by a court of equity to enforce its decrees; 3 and it is also used in statutory actions of ejectment, actions to recover land, and in trespass to try title.5 In short, whenever the object is to place a person in the possession of real or personal property, the writ in use is that of possession. 3. Scope of Article. As, however, the practice respecting writs of possession is the same in principle whether issuing at common law, in equity, or under a statute, this article is intended to include all writs in the nature of the common-law writ of habere facias possessionem.® II. FORM AND CONTENTS OF WRIT. The form of writ principally used in modern times differs but little from the ancient one, and is prescribed substantially in the various codes of practice; 7 and their statutory requirements (as in other writs of execution) ternational, etc., R. Co., 5 Tex. Civ. App. 261. And see generally article RECEIVERS. 1. Bac. Abr., tit. Execution, D 5. 2. Wallen v. Williams, 7 Cranch (U. S.) 602, citing 5 Com. Dig., Pleader, 3 B. 20; 9 Vin. Abr., tit. Error, F, pl. 3. 3. In Tennessee, even before the code, a court of chancery had jurisdiction to award a writ of possession for land where a controversy concerning the Irvine v. title was properly in court. McRee, 5 Humph. (Tenn.) 554. In Suits to Quiet Title.-So also where the bill is one to quiet title the writ has been used in some states. Trabue v. Ingles, 6 B. Mon. (Ky.) 84; Ballinger v. Waller, 9 B. Mon. (Ky.) 68; Lombard v. Atwater, 43 Iowa 599; Lees v. Wetmore, 58 Iowa 170; Wyland v. Mendel, 78 Iowa 739; Strabala v. Lewis, 80 Iowa 510; Landregan v. Peppin, 94 Cal. 465. After Dower Had Been Assigned the writ was awarded in Agnew v. Lichten, 19 Ill. App. 79. - In Partition Suits the court may carry its decree into effect by awarding the writ. Kern v. Zink, 55 Ill. 449. - In cases where After Judicial Sale. property is sold under a decree of court the writ may be awarded. Junek v. Hezeau, 11 La. Ann. 731; Smyrna Bldg. Loan Assoc. v. Worden, 5 Houst. (Del.) 508; Wright v. Rodney, 5 Houst. v. (Del.) 573; Harryman v. Starr, 56 Md. In Federal Courts the writ may be awarded where it is permissible in state practice. Leighton v. Young, 10 U. S. App. 298. 4. See the statutes of the various states. 5. Isler v. Foy, 66 N. Car. 547; Field v. Moody, 111 N. Car. 353; Meyer v. Kirlicks, (Tex. Civ. App. 1894) 25 S. W. Rep. 652; Willburn v. Tow, (Tex. Civ. App. 1893) 23 S. W. Rep. 853: Carleton v. Hausler, (Tex. Civ. App. 1899) 49 S. W. Rep. 118. 6. Confusion of Terms. Reporters and law writers have in many instances designated as writs of possession those which in reality are either writs of assistance or writs of restitution. to the former, see article ASSISTANCE, Writ of, vol. 2, p. 975; and as to the latter, see article RESTITUTION, WRIT 745 OF. As 7. Forms. For an old form of the writ see Wentworth's Pleading, vol. 10, p. 49. For forms of modern writs see Rev. Stat. Ill., c. 45, § 42; Code Civ. Pro. Cal., § 682; Code Civ. Pro. N. Y., § 1373. Volume XVI. must be strictly followed.1 Description of Premises Recovered. But with respect to the idiosyncrasies peculiar to a writ of possession, the description of the premises, which the officer is directed to give to the plaintiff, is of a general character, though, in order that the execution of the writ may be the more certain, it should follow the judgment and declaration.4 But whether the description be general or 2 1. See article EXECUTIONS AGAINST PROPERTY, vol. 8, p. 388. 2. Minute and Precise Description Not Required. It is the modern practice for the plaintiff to point out the premises to the sheriff, as it was found by experience that the contrary course of requiring a minute and precise description of the land was attended with many inconveniences. If a description be minute, it must be exact or its very minuteness only misleads. It is true that, under this practice, a plaintiff may seek to obtain possession of more than he has recovered; but in such case the courts will interfere summarily and restrict the action of the sheriff under the writ to the land to which the plaintiff proves title at the trial. Johnson v. Nevill, 65 N. Car. 677. 3. Williams v. Kelso, 7 La. 409, holding that as Code Prac. La., art. 630, 631, requires that the writ shall be directed to the sheriff with a copy of the judgment and a copy of the petition to which it refers, reasonable certainty, at least, is required. Where Division Lines Are in Dispute the description should describe the lands adjudged with sufficient certainty to enable the officer correctly and intelligently to execute the writ. Franklin v. Haynes, 119 Mo. 566. See also Clark v. Clark, 7 Vt. 190; Davis v. Judge, 44 Vt. 500. 4. Sherman v. Hanno, 66 N. H. 160. Following Judgment and Complaint. -It is true that the sheriff is seldom or never provided with process so explicit on its face that he can, without the aid of extrinsic information, execute it with unerring certainty. He must avail himself of the information of others as to location, boundaries, follow the complaint. Orton v. Noonan, 18 Wis. 447; Copley v. Bonner, 7 La. Ann. 579. Rule at Common Law. Moreover, the rule seems to have been the same at common law from a very early day. Thus, Roe v. Dawson, 3 Wils. 49. is reported as follows: "The plaintiff in ejectment, as tenant in common, recovered possession of five-eighths of a cottage, with the appurtenances, and a writ of possession was executed by the sheriff, who turned the tenant out of possession of the whole, and locked up the door, as appeared by affidavit. Curia: This is wrong; the writ ought to have pursued the verdict. Let there be a rule upon the sheriff." 5. Specifying Portion of Land Recovered. - Where an entire tract of land is claimed and a verdict given for only a portion thereof, the writ will be bad unless it specifies that portion with exactness; for by this method questions are settled at once which might otherwise produce troublesome controversy in other forms. McCullough v. East Tennessee, etc., R. Co., (Ga. 1898) 32 S. E. Rep. 97. Citing Hicks v. Brinson, 100 Ga. 595; M'Arthur v. Porter, 6 Pet. (U. S.) 205; Hitchcox v. Rawson, 14 Gratt. (Va.) 526; Kyser v. Cannon, 29 Ohio St. 359; Smith v. Jenks, 10 S. & R. (Pa.) 153; Crommelin v. Minter, 9 Ala. 594: Bennet v. Morris, 9 Port. (Ala.) 171; Gregory v. Jacksons, 6 Munf. (Va.) 25. Where a general verdict was ob tained by the plaintiff, who sued for five acres of land, and failed to prove title to twenty-nine feet, the court held that the writ should describe only that portion to which he showed title. Bledsoe v. Doe, 4 How. (Miss.) 13. See also Jackson v. Van Bergen, 1 Johns. Cas. (N. Y.) 10I. Where the Verdict Was for Four Undivided Ninth Parts of a tract of land, in favor of four plaintiffs, and judgment therefor, a writ of habere facias possessionem issued to put the plaintiffs in possession of the whole tract of land 1 special, it will be sufficient if the premises can be identified." Return Day Unnecessary. It is unusual to designate a return day,3 but the writ may be made returnable at a certain date.4 III. ISSUANCE OF WRIT 1. Limitation. Under the common law the plaintiff must sue out his writ within a year and a day after the rendition of the judgment, or he will be compelled to renew the judgment by scire facias." 6 5 Effect of Issuance Without Scire Facias. Should it issue after the expiration of that time, without the judgment being revived, it will be irregular and voidable, except where its issuance has been enjoined or stayed by appeal or writ of error. 10 8 2. Writ Issuing of Course. And during this period, execution may issue as of course in cases where the landlord defends, 11 when the defendant disclaims. 12 was held correct. Dupont v. Ervin, 2 Brev. (S. Car.) 400. 1. Where There Is a Special Verdict designating by metes and bounds the precise part found for the plaintiff, the judgment and execution must conform thereto. McCraven v. McGuire, 23 Miss. 100. Citing Jackson v. Rathbone, 3 Cow. (N. Y.) 296; Camden v. Haskill, 3 Rand. (Va.) 465; Doe v. Wilson, 2 Stark. 477, 3 E. C. L. 495. 2. Franklin v. Merida, 50 Cal. 289; Lawrence v. Davidson, 44 Cal. 177. Effect of Uncertainty. — Uncertainty of description of the boundaries of the premises recovered will not render a writ void. Burnham v. Stone, IOI Cal. 170. Execution of the writ cannot be compelled if there be not an accurate description. Goldman v. Douglass, 81 Tex. 648. Motion to Quash. Where it is desired to take advantage of uncertainties in the writ, the party should move to quash. Parr v. Van Horn, 38 Ill. 226. 3. Jackson v. Hawley, 11 Wend. (N. Y.) 183, in which case the court said that the object of not having a return day is that the writ may be re-executed as often as the defendant may forcibly enter on the premises from which he has been removed. 4. Witbeck v. Van Rensselaer, 64 N. Y. 27. 5. In Illinois the writ may issue within seven years. After that time the judgment, by analogy to other judgments, becomes dormant, and execution can issue only upon its revival by scire facias. Wilson v. Trustees of Schools, 138 Ill. 285; Bowar v. Chicago West Div. R. Co., 136 Ill. 101. or In Louisiana no length of time will deprive a party of his right to issue the writ. Riddle v. Ratliff, 8 La. Ann. 106. In New York the limitation is five years. Van Rensselaer v. Wright, 121 N. Y. 626. 6. Bac. Abr., tit. Ejectment, G. When Time Begins to Run. — The time will run from the day on which the judgment is entered. Barnes 197; Emmons v. Bishop, 14 Ill. 152; Pugh v. Reat, 107 Ill. 440. 7. Lowry v. Jenkins, 3 Bibb (Ky.) 314; Bac. Abr.. tit. Ejectment, G; 2 Sel. 204; Withers v. Harris, 2 Ld. Raym. 806; Runnington on Eject. 428. But if Execution Be Taken Out within and continued beyond the year, there is no necessity for a scire facias, because no presumption can then arise that the plaintiff has released the execution; for, having been taken out, it may be owing to the sheriff's neglect that it is not executed. 2 Inst. 471; 2 Leon. 77. 8. Bowar v. Chicago West Div. R. Co., 136 Ill. 101. 9. Michel v. Cue, 2 Burr. 660. But see contra, Booth v. Booth, 6 Mod. 288. 10. Goodwin v. Grudge, Cro. Eliz. 416; 1 Rolle Abr. 899, c. 20; Howard v. Pitt, 1 Salk. 261; Bowar v. Chicago West Div. R. Co., 136 Ill. 101. 11. Doe v. Bennett, 4 B. & C. 897, 10 E. C. L. 466. And see Isler v. Foy, 66 N. Car. 547. No Further Order of Court is necessary. David v. Municipality No. Two, 11 La. Ann. 47; Bourguignon v. Boudousquie, 7 Martin N. S. (La.) 157. 12. That is, as to the lands disclaimed, if the disclaimer is as to a portion only. Squires v. Riggs, 2 Hayw. (N. Car.) 150; Godfrey 7. Cartwright, 4 Dev. L. Mandamus to Compel Issuance. And when a party is entitled to a writ of possession, mandamus lies to compel a court or judge to issue it, 1 Order for Issuance Unnecessary. It is not necessary that the issuance of the writ should be directed by the judgment; 2 the practice being to enter the verdict generally, upon which the plaintiff sues out the writ of possession.3 Agreement to Sell Premises to Defendant. - If, after judgment, the plaintiff should contract to sell the premises to the defendant he will entirely lose his right to issue the writ.+ 3. On Motion. The plaintiff must move for an execution in cases where the term under which he claims has expired, or after (N. Car.) 487; Bronson v. Paynter, 4 Dev. & B. L. (N. Car.) 393. 1. People v. Murray, 2 Misc. Rep. (N. Y. Super. Ct.) 152; People v. Tracy, I Den. (N. Y.) 617; People v. Willis, 5 Abb. Pr. (N. Y. Supreme Ct.) 205. 2. Landregan v. Peppin, 94 Cal. 465; State v. Bondy, 15 La. Ann. 573. 3. Pennel v. Weyant, 2 Harr. (Del.) 501. Where One of Two Plaintiffs Dies after judgment the writ may issue without scire facias. Howell v. Eldridge, 21 Wend. (N. Y.) 678. If the Plaintiff Dies and His Estate Is Continued in heirs, a writ of possession may issue under the direction and control of the court as to the persons entitled to be put in by the sheriff; but where the defendants are some of the heirs of the deceased plaintiff, the execution should be modified by putting in the other heirs with them instead of putting the defendants out of possession. Wilson v. Hall, 13 Ired. L. (N. Car.) 489. Or it may issue and be executed for the benefit of the successors in title of the deceased plaintiff. Franklin v. Merida, 50 Cal. 289. Necessity to First Tax Costs. Where the plaintiff obtains a verdict for possession mesne, rents and costs, he is not entitled to a habere until costs are taxed and added to the judgment or waived by him, as until then the judgment is not complete. Beasley v. Chapman, 6 Ir. L. Rep. 393. 4. Agreement to Sell Premises - Nonpayment. In a case where, after recovery, the successful party agreed to sell the premises to the defendant, who, however, failed to pay therefor, it was held that by so contracting the plaintiff had the fruits of his judgment, and that he could not regain because of nonpayment the right of issuance which he had abandoned. Hough v. Norton, 9 Ohio 45. 5. Whether a Writ Should Issue in This Case is not well settled. It was held that the writ could not issue in Robertson v. Morgan, 2 Bibb (Ky.) 148. And where one had issued it was quashed. Wood v. Coghill, 7 T. B. Mon. (Ky.) 601. In Tobin v. Cleary, 7 Ir. C. L. Rep. 17, it was held that the person so losing his title by an occurrence subsequent to action was entitled to judgment, but not to a habere. Compare Doe v. Bluck, 3 Campb. 447. In New York, the plaintiff's title having expired pending a decision on appeal, the judgment was affirmed, but the issuance of a habere was restrained. Ollendorf v. Cook, 1 Lans. (N. Y.) 37. But see Code Civ. Pro. N. Y., § 1520. Writ Issues unless Defendant Shows Cause Against It. In Knight ข. Clarke, 15 Q. B. Div. 294, it was held that the claimant in ejectment is entitled to a writ of possession, notwithstanding his estate in the premises terminates after the commencement of the action and before trial, unless it is unjust and futile to issue such a writ; and it is for the defendant to show affirmatively such injustice and futility. Approving Gibbins v. Buckland, I H. & C. 736. Effect of Injunction Against Execution of Writ. Where execution of the writ of habere possessionem is prevented for several years by injunction, the plaintiff is entitled to the writ on motion upon a rule to show cause, without a scire facias, provided not more than a year has elapsed since the affirmance, by the appellate court, of the decree dissolving the injunction. Noland v. Seekright, 6 Munf. (Va.) 185. But this |