against as for a contempt for not performing the decree, a writ of execution commanding him to obey the decree was required to be issued and served upon him. If the party neglected to perform the decree, the court, upon affidavit of service of the writ of execution, and of the party's disobedience, would make an order that he be proceeded against by the ordinary process of contempt. 140

§ 735. Sequestration.

The writ of sequestration was one of the oldest writs in chancery, and empowered sequestrators to take the goods and personal estate and enter on the real estate of the defendant, and sequester the rents and profits, and retain or pay over the same as the court might direct, until the defendant performed the decree.141 Writs of sequestration are rarely used in modern practice. If the decree is for the payment of money, the usual process is a writ of execution; if for the performance of a personal act, process of contempt is employed. Where a writ of execution is allowable, manifestly there would be little occasion for sequestration, and the modern use of proceedings by attachment for contempt are usually sufficient to enforce the performance of any act required of the defendant. The process of sequestration, although it has gone almost out of use since the statutes allowing an ordinary execution against the real, as well as the personal, property of the party to enforce the payment of money decreed by a court of chancery, may be properly resorted to as a means of enforcing the performance of other decrees where an attachment cannot be served, or where the defendant chooses to remain in prison after his commitment for contempt of the court. It would seem, also, that choses in action, under certain circumstances, may be effectually seized by sequestrators, although they cannot be seized and sold by the sheriff under execution.142

140 1 Barbour, Ch. Pr. 441; Blake, Ch. Pr. 168.

141 Adams, Eq. 324; 1 Hoffman, Ch. Pr. 145-160; Foster, Fed. Pr. § 347. See United States Equity Rules 7, 8.

142 Hosack v. Rogers, 11 Paige (N. Y.) 603. See, also, Keighler v.

§ 736. Writ of assistance.

The writ of assistance commands the proper officer of the court to put the complainant in the possession of certain property, to which, by the decree of the court, he is entitled.143 It is said that, in the execution of this writ, the sheriff may call to his aid the power of the county, and may break open all necessary doors, if the possession be not quietly delivered.144 The writ is often used to put into possession receivers and sequestrators. It is not issued without an order for that purpose. It commands the proper officer to eject the defendant from the land, and put the complainant in possession, and is executed in the same manner as the writ of habere facias possessionem is executed in favor of a successful plaintiff in an action of ejectment.145 It is held that the writ can issue on the application of no one except a party to the suit.146 But a purchaser at a sale under a decree is deemed to be a party, within the rule.147 It will not issue against any but a party to the suit in which it was sought, or his representative, or one coming into possession pendente lite.148 It is only allowed when the right is clear.149

Ward, 8 Md. 258; Grew v. Breed, 12 Metc. (Mass.) 363, 46 Am. Dec. 687; National Docks & N. J. J. C. Ry. Co. v. Pennsylvania R. Co., 54 N. J Eq. 167, 33 Atl. 936; White v. Geraerdt, 1 Edw. Ch. (N. Y.) 336; Geery v. Geery, 63 N. Y. 252; Wilson v. Metcalfe, 1 Beav. 269; Francklyn v. Cohoun, 3 Swanst. 309.

143 Adams, Eq. 393; Foster, Fed. Pr. § 348; Oglesby v. Pearce, 68 Ill. 220; Taylor v. Ellenberger, 134 Cal. 31, 66 Pac. 4.

144 Crocker, Sheriffs, § 573.

145 Comer v. Felton, 22 U. S. App. 313, 61 Fed. 734, quoting approvingly Foster, Fed. Pr. § 348.

148 Wilson v. Polk, 13 Smedes & M. (Miss.) 132, 51 Am. Dec. 151. 147 Jones v. Hooper, 50 Miss. 510.

148 Ricketts v. Chicago Permanent Building & Loan Ass'n, 67 Ill. App. 71; Comer v. Felton, 22 U. S. App. 313, 61 Fed. 731; Terrell v. Allison, 21 Wall. (U. S.) 289; Howard v. Milwaukee & St. P. Ry. Co., 101 U. S. 849; Paine v. Root, 121 Ill. 77, 13 N. E. 541; McChord's Heirs v. McClintock, 5 Litt. (Ky.) 304; Gelpeke v. Milwaukee & H. R. Co., 11 Wis. 454; Van Hook v. Throckmorton, 8 Paige (N. Y.) 33. See Musgrove v. Gray, 123 Ala. 376, 26 So. 643.

149 National Building & Loan Ass'n v. Strauss (N. J. Eq.) 49 Atl. 137; Barton v. Beatty, 28 N. J. Eq. 412; Blauvelt v. Smith, 22 N. J. Eq. 31;

And it is not customary to issue the writ where there is a bona fide contest as to the right to possession of the property, or where the rights of the respective parties have not been fully adjudicated in the principal suit. Its issuance is discretionary with the court.150

Facts showing its necessity must be presented to the court.151 There is a difference of opinion concerning the necessity of giving notice therefor. As between the parties and those claiming under them, it is said that the defendant is not entitled to such notice;152 but it is held that the person in possession should have notice of the application for the writ, and is entitled to be heard thereon.153

$737. Execution of documents.

Where the decree directs deeds or other instruments to be executed by a party to the suit, the ordinary process for con

Hooper v. Yonge, 69 Ala. 484. See for instances when proper: Com. v. Dieffenbach, 3 Grant Cas. (Pa.) 368; Gormley v. Clark, 134 U. S. 338; Garretson v. Cole, 1 Har. & J. (Md.) 370, where the form of the writ is set out; Stillwell v. Hart, 40 App. Div. 112, 57 N. Y. Supp. 639; Ex parte Forman (Ala.) 30 So. 480.

150 Vanmeter v. Borden, 25 N. J. Eq. 414; Roach v. Clark, 150 Ind 93, 48 N. E. 796; Shenck v. Conover, 13 N. J. Eq. 220; Wiley v. Carlisle, 93 Ala. 238, 9 So. 288; Knight v. Houghtalling, 94 N. C. 411; Hayward v. Kinney, 84 Mich. 591, 48 N. W. 170; Ramsdell v. Maxwell, 32 Mich. 285; Ex parte Jenkins, 48 S. C. 686, 26 S. E. 686.

151 Bruce v. Roney, 18 Ill. 67; Oglesby v. Pearce, 68 Ill. 220; Cook v. Moulton, 68 Ill. App. 480.

152 Harney v. Morton, 39 Miss. 508.

153 Blauvelt v. Smith, 22 N. J. Eq. 31; Jones v. Hooper, 50 Miss. 510; Waters v. Duvall, 6 Gill & J. (Md.) 76; Hooper v. Yonge, 69 Ala. 484. The practice in Illinois, where the decree orders the defendant, on the execution of a deed by a master in chancery, to surrender possession, is to serve a copy of the decree on the defendant in possession, or, if others are in under him as purchasers, tenants, or otherwise, then upon them, and, on possession being refused, the writ of assistance directed to the sheriff to put the purchaser into possession issues, as of course, on motion and without notice. Oglesby v. Pearce, 68 Ill. 220. For practice in Michigan, see Aldrich v. Wayne Circuit Judge, 111 Mich. 525, 69 N. W. 1108; Howard v. Bond, 42 Mich. 133, 3 N. W. 289; Baker v. Pierson, 5 Mich. 456. For practice in Alabama, see Musgrove v.

tempt must be employed to enforce their execution.154 La some jurisdictions, a master or other officer of the court is authorized by statute to execute conveyances which, previous to the passing of the act authorizing it, were required to be executed by the parties.155 A question has arisen concerning the effect of a deed of property, situated in one state, executed in another state by such master or other officer, in pursuance of a decree of a court in such latter state. It is held that such a deed is void.156 § 738. Sales of property-By whom conducted.

It frequently becomes necessary for the court to order the sale of property involved in the litigation. The manner of conducting such sales, the notice required to be given thereof, and the persons authorized to conduct the same are usually provided for by statute or rule of court. Sales of premises under a decree in chancery are usually made by a master or commissioner, or under the immediate direction of such officer, who may, however, employ an auctioneer merely to conduct the sale in his presence.157 Masters' sales are usually managed by the solicitor for the complainant, and it is held that he is, in all questions which may arise between the vendor and purchaser, to be considered as the agent of all the parties to the suit.158 Notice is usually required to be given where property is sold. The requirements of such notice are usually specified by either a statute, rule of court, or the decree directing the sale. The master or commissioner directed to sell such property draws up a notice of the time and place of sale, containing a description of the

Gray, 123 Ala. 376, 26 So. 643. For practice in federal courts, see Foster, Fed. Pr. § 348; Beach, Mod. Eq. Pr. §§ 897-902. For form of order au thorizing writ, see Cook v. Moulton, 68 Ill. App. 481.

154 1 Barbour, Ch. Pr. 441; 155 1 Barbour, Ch. Pr. 441. 156 Watts v. Waddle, 6 Pet. (U. S.) 389; Morris v. Hand, 70 Tex. 481 8 S. W. 210; Burnley v. Stevenson, 24 Ohio St. 474; Gibson v. Burgess 82 Va. 650; Page v. McKee, 3 Bush (Ky.) 135; Poindexter v. Burwell 82 Va. 507.

Ormsby v. Nicholson, Vern. & S. 115.
See Foster, Fed. Pr. § 349.

157 1 Barbour, Ch. Pr. 525; Heyer v. Deaves, 2 Johns. Ch. (N. Y.) 154 158 Dalby v. Pullen. 1 Russ. & M. 296.

159

property to be sold. It is usual to insert in such notice the title of the cause.1 It is proper to insert such title in the notice by stating the names of the first complainant and first defendant, and adding the words "and others," where there are several complainants and defendants.160 Although a residuary legatee, or tenant for life, or the owner of a reversionary interest, may become the purchaser at a sale under order of the court, it is necessary, if he be a party to the record, that he should have a previous order to warrant his being admitted as a bidder at the sale, and the court will not permit a party having such an order to conduct the sale.161 If a master's conduct is grossly oppressive and improper, upon a sale by him it will be ordered to be set aside, and, under certain circumstances, the costs of so doing, and of subsequent proceedings, have been taxed against him.162 In ordinary sales by auction or private agreement, the contract is complete when the agreement is signed, but a different rule prevails in sales by a master. In such cases, the purchaser is not considered as entitled to the benefit of his contract till the master's report of the purchaser's bid is absolutely confirmed.183 Under the English practice, in order to obtain. the benefit of his contract, the purchaser, at his own expense, procured a report from the master's office of his being the highest bidder for the property.164 In most jurisdictions the complainant procures and files the master's report of sale.165 After the master's report has been filed, the court enters an order that the sale may be confirmed. It is usually provided that the sale may be confirmed unless cause is shown against it within a specified number of days, and, if no such cause is shown with

159 1 Barbour, Ch. Pr. 526.

160 Ray v. Oliver, 6 Paige (N. Y.) 489.

1611 Barbour, Ch. Pr. 527; Williams v. Attenborough, Turn. & R. 76; Domville v. Berrington, 2 Younge & C. 724.

182 Baring v. Moore, 5 Paige (N. Y.) 48. 163 1 Barbour, Ch. Pr. 529.

1841 Sugden, Vend. 59.

1851 Barbour, Ch. Pr. 529.