Bohannon v. Virginia Trust Co., 207 N.C. 163 (1934)

Oct. 10, 1934 · Supreme Court of North Carolina

207 N.C. 163

MARY B. BOHANNON v. VIRGINIA TRUST COMPANY et al.

(Filed 10 October, 1934.)

Assistance, Writ of, A a — Only party deriving title immediately from commissioner’s deed is entitled to writ of assistance.

A party purchasing land at a judicial sale is entitled to a writ of assistance to put him in possession, but a purchaser at such sale who transfers his title to a third person before applying for the writ, or who so transfers his title and takes a reconveyance back from his grantee, is not entitled to such writ.

Schenck, J., took no part in the consideration or decision of this case.

Appeal by Sussex Corporation, movant, from Schenck, J., at May Term, 1934, of BuNcombe.

Motion, by Sussex Corporation to vacate order entered at tbe May Term, 1933, a year previous, and for writ of assistance.

This was an action to restrain foreclosure under power of sale contained in a deed of trust. Foreclosure was later bad under order of court in equity. Tbe Sussex Corporation became tbe purchaser at tbe commissioner’s sale. Writ of assistance was issued 16 January, 1933. Thereafter, at tbe May Term, 1933, upon motion of plaintiff, the execution of said writ was enjoined or recalled, it appearing that tbe Sussex Corporation, prior to tbe issuance of said writ, bad conveyed all its interest in tbe lands by full warranty deed, without reservation of any bind, to Carl Y. Reynolds. No appeal was prosecuted from this injunction or vacation of tbe writ of assistance. Carl Y. Reynolds then reconveyed tbe property to bis grantor. Upon this change in title, tbe Sussex Corporation again applied in this same cause for another writ of assistance.

This second application was denied upon tbe ground that tbe prior order vacating or recalling tbe original writ was res judicata, and that movant’s present title is immediately derived from tbe deed of Carl Y. Reynolds and not from tbe deed of tbe commissioner.

Movant appeals, assigning error.

Louis A. Whitener and J ones & Ward for plaintiff.

Bourne, Parlcer, Bernard & DuBose for movant.

Stacy, C. J.

It is not perceived upon what theory valid objection to tbe ruling of tbe trial court may be predicated. Having lost its right to a summary writ of assistance by conveying tbe premises to another and allowing tbe matter to be so adjudicated without appeal, movant is in no position to ask for further assistance in tbe present proceeding. Its remedy now is by suit in ejectment.

That one who buys at a judicial sale is entitled to a writ of assistance is not questioned (Bank v. Leverette, 187 N. C., 743, 123 S. E., 68; Knight v. Houghtalling, 94 N. C., 408), but movant parted with tbe title which it acquired under tbe commissioner’s deed before applying for such writ. At any rate, it allowed tbe matter to be so adjudged without appeal.

Affirmed.

ScheNCK, J., took no part in tbe consideration or decision of this case.