Montgomery v. Middlemiss

Citations

• 21 Cal. 103

Syllabus

<p>The decree in an action to foreclose a mortgage concludes the rights of all parties to the action, and the sale under it, consummated by the Sheriff’s deed, passes, as against them, the entire estate held by the mortgagor at the date of the mortgage. The purchaser as against such parties is entitled upon the receipt of his deed to the possession of the premises, and, if necessary, to the aid of the Court in enforcing its delivery—and his right to this aid is not affected by the fact that pending the action the plaintiff may have executed to one of the parties defendant a conveyance of the whole or a portion of the premises embraced in the decree.</p> <p>The purchaser at a sale under a decree of foreclosure of a mortgage is entitled to a writ of assistance, although the decree in the foreclosure action contains no direction to deliver the possession, and although at the time of the application no preliminary order for such delivery of possession has been made by the Court.</p> <p>All that is requisite to obtain the writ as against the parties, and those claiming with notice under them after the commencement of the action, is to furnish to the Court proper evidence of a presentation of the deed to them, and a demand of the possession, and their refusal to surrender it.</p>