[DOWNLOAD] "Burton v. State" by In the Court of Appeals of the State of Mississippi # Book PDF Kindle ePub Free
eBook details
- Title: Burton v. State
- Author : In the Court of Appeals of the State of Mississippi
- Release Date : January 22, 2004
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 53 KB
Description
Mortgages — Farm Lands — Foreclosure — Writ of Assistance to Oust Tenant — When Writ Proper Remedy — Refusal of Court to Take Jurisdiction — Mandamus. Mortgages — Writ of Assistance — When Proper Remedy. 1. The writ of assistance is a proper remedy to place in possession a mortgagee who has received a sheriffs deed pursuant to foreclosure sale, as against the mortgagor and those holding under him with notice after the commencement of the action. Same — Foreclosure — Farm Tenant Holding Under Unrecorded Lease Bound by Decree Though not Party — When Writ of Assistance Remedy to Oust Tenant. 2. A farm tenant holding under an unrecorded lease was, under section 9467, Revised Codes 1921, bound by the decree of foreclosure even though he was not a party to the action, and the writ of assistance lay to oust him from possession; otherwise, if he acquired a new and independent right after rendition of the decree. Same — Writ of Assistance Operates upon What Rights Only. 3. The writ of assistance relates back to, and operates upon, only those rights which might have been determined by the decree of foreclosure. Same — Writ of Assistance — Defense by Tenant — When Showing Insufficient to Make Prima Facie Case. 4. Where a tenant of the mortgagor of farm lands in answer to an order to show cause why he should not be ousted under a writ of assistance, set up a new and independent right by virtue of an oral lease with the mortgagor, his contention, that having made a prima facie showing of his right, the writ should not be allowed, held not meritorious, where the mortgagee seeking to oust him had filed a reply denying such allegation. Same — Writ of Assistance — Claim of New Right in Tenant to Defeat Writ must be Reasonable. 5. To defeat a petition for a writ of assistance, the claim of a new right asserted by a holding tenant, must be reasonable and the showing made in support thereof sufficient to invoke judicial discretion. Pleading — "Prima Facie" Case — Definition. 6. A "prima facie" case is one in which the evidence in favor of a proposition is sufficient to support a finding in its favor, if all of the evidence to the contrary be disregarded. Page 601 Mortgages — Writ of Assistance — Case at Bar — Refusal of Trial Court to Hear Evidence as to Whether Tenant had Made Prima Facie Case to Defeat Issuance of Writ Held Error. 7. The district court at the hearing of an order to show cause why a tenant of agricultural lands, holding after entry of a decree of foreclosure, should not be ousted under a writ of assistance, declined to issue the writ on the ground that the tenant in his answer (the allegations of which were denied by reply) made out a prima facie showing that he held under a new right, and refused to hear evidence. Held, on application for writ of mandate, that the court erred in refusing to hear evidence to the extent at least of enabling it to determine whether the tenant could establish a prima facie defense. Mandamus — Writ Lies to Compel District Court to Take Jurisdiction in Proper Case — Discretion. 8. While the writ of mandate does not lie to control discretion or revise judicial action, it does lie to compel action where the lower court, having jurisdiction, erroneously refuses to exercise it. Mortgages — Refusal of Tenant to Give Up Possession After Decree of Foreclosure — Writ of Assistance and Action of Unlawful Detainer Concurrent Remedies. 9. A mortgagee seeking to oust a tenant after decree of foreclosure, may proceed either by writ of assistance or by an action of unlawful detainer, the two remedies being concurrent; election of one does not bar prosecution of the other.