
    Augusta Voigtlander et al. v. M. Brotze.
    (Case No. 4826.)
    1. District court, — The district court in all cases within the scope of its jurisdiction has authority to grant any measure of relief, whether in law or equity, that could at common law be granted either by a court of law or equity. Shulte v. Hoffman, 18 Tex., 678; Teas v. Robinson, 11 Tex., 776, and Tucker v. Anderson, 25 Tex. Sup., 158, cited and approved,
    2. Practice.— Suggested as the better practice for a party, in the concluding prayer of his petition, to ask specially for the particular relief desired, though a failure to do so will not affect the power of the court to afford, the relief to which the case as made entitles him.
    8. Writ of assistance — Practice.™ The authority of the district court to grant relief in favor of a purchaser at foreclosure sale made Under its judgment, when the defendant in possession refuses to surrender the premises, discussed, and the conclusion announced that the district court rendering such judgment has authority to direct the issuance of a writ of assistance to place the plaintiff in possession without requiring him to institute proceedings for that purpose.
    
      Error from Bexar. Tried below before the Hon. George H. Noonan.
    Mrs. Margaretta Brotze, the defendant in error, had brought suit in the district court of Bexar county against Louis Yoigtlander and his wife Augusta on a promissory note given for purchase money of a lot in the city of San Antonio, secured by a deed of trust upon the land sold. Louis Yoigtlander died, and his children and heirs .were made parties. The suit resulted in a judgment for Mrs. Brotze for $1,547, and a recognition and foreclosure of her lien.
    On April 18, 1882, Mrs. Brotze purchased the lot at the foreclosure sale, paid for it, obtained a deed from the sheriff, and then called upon the Yoigtlanders, who were in possession of the lot, for the purpose of obtaining possession. They refused to deliver it, and Mrs. Brotze filed complaint in the district court, setting forth the facts which, in her opinion, entitled her to possession. After due notice, the Yoigtlanders appeared and filed an answer, denying the authority of the court to proceed in this manner, -asserting that only by action of trespass to try title could possession be obtained. The court entered an order that the Yoigtlanders should leave the lot in question, and that a copy of the order be served on them. That order was served, yet they remained. Mrs. Brotze then filed another sworn statement in court, reciting the facts, and that she had again demanded possession, and had again been refused, this time praying that a ivrit of assistance issue, and that the sheriff or any constable of Bexar county be commanded to put her in possession. An order to that effect was made on April 18, 1882, and to procure a revision of the action of the court the Yoigtlanders sued out a writ of error.
    
      Shook & Dimar, for defendants in error.
   West, Associate Justice.—

Though it is a power that has been rarely exercised by the district courts of this state, yet there is no doubt that they have the authority to extend the relief, and enter the order to revise which the writ of error in this case was sued out.

This action became necessary and proper, under the facts of the case, to enable the court to carry out its final decree, heretofore rendered in this cause, and to give the defendant in error the proper relief to which she was entitled under the pleadings. This exercise of power is fully authorized by the constitution and laws. Const., art. V, sec. 8; R. S., arts. 1122, 1123, 1340.

Under the provisions of article 1122, Revised Statutes, above cited, in all cases in which the district court has jurisdiction, by virtue of the grant to it of judicial power by the organic law, that court is fully authorized to administer any measure of relief whatever, whether in law or equity, that could at common law be granted either by a court of law or in equity.

In Shulte v. Hoffman, 18 Tex., 678, the district court, in the exercise of this power, and in the absence of any statute to that effect, on the rendition of the final judgment appointed a receiver, and also issued in that case a writ of assistance. See, also, Teas v. Robinson, 11 Tex., 776; Tucker v. Anderson, 25 Tex. Sup., 158.

In cases of this character, it would be the better and the safer practice for the party, in the concluding prayer of his petition, to ask specially for all the particular reliefs denied. This is, however, not necessary, and the practice in chancery has been, in such cases, to grant all the relief necessary, whether it has been specially asked for or not. Such has been the practice of the district courts of this state. See Hardy v. De Leon, 5 Tex., 246, 247, where this subject of the power of the court to grant the special relief proper under the circumstances is alluded to and-discussed in the ninth paragraph of the opinion. Tramell v. Watson, 25 Tex. Sup., 216; Hipp v. Huchett, 4 Tex., 20.

In the latter case, Chief Justice Hemphill, in speaking of the seventh section of the act of May 10, 1846, of which article 1122 of the Bevised Statutes is a literal copy, except that the present act is broader in its terms, and does not require; as did the former act, the special relief desired to be prayed for, says: “By it the district court is invested with all the powers necessary to afford appropriate relief, and is also empowered to reform its judgments so as to afford all the relief which may be required by the nature of the case, and is grantable by courts of law or equity.”

It is in fact a power inherent in the district court, by reason of the constitutional grant of equitable jurisdiction given to it.

Mr. Jones, in the second volume, section 1663 (2d edition), of his work on mortgages, gives an account of the early exercise of this power by courts of chancery, as follows: “It has long been the practice of courts of chancery in England, adopted also in this country, wherever a sale and conveyance of real estate has been decreed, to compel a person in possession of the property to surrender it to the purchaser by an order, or by an injunction, or by a writ of assistance. Lord Hardwicke said that this practice had its origin in the reign of James I; but- Mr. Eden says that this statement is a mistake, as many precedents for injunctions to deliver possession after a decree and a commission or writ of assistance to the sheriff, are in the printed reports as early as the reign of Queen Elizabeth, and are also found in a manuscript book of orders in the time of Henry VIII, Edward VI and Mary. But whenever the practice was begun, it has long been established, both in England and in this country, and is applied to sales under decrees in foreclosure suits.

“Accordingly, after a sale has been made under a decree in a foreclosure suit, the court has power to give possession to the purchaser, though the delivery of the possession is not made part of the decree. He is not driven to an action of ejectment at law to obtain possession.”

In Kershaw v. Thompson, 4 Johns. Ch., 609, Chancellor Kent also fully examines the question as to the existence and exercise of this power, and in his very learned opinion says: “It does not appear to consist with sound principle, that the court which has ■exclusive authority to foreclose the equity of redemption of a mortgagor, and can call all the parties in interest before it, and decree a .sale of the mortgaged premises, should not be able even to put the purchaser into possession against one of the very parties to the suit, and who is bound by the decree. When the court has obtained . lawful jurisdiction of a case, and has investigated and decided it upon its merits, it is not sufficient for the ends of jústice merely to declare the right without affording the"remedy. If it was to be understood that, after a- decree and sale of mortgaged premises, the mortgagor, or other party to the suit, or, perhaps, those who have been let into the possession by the mortgagor pendente lite, could withhold the possession in defiance of the authority of this court, and compel the purchaser to resort to a court of law, I apprehend that the delay and expense and inconvenience of such a proceeding would greatly impair the value and diminish the results of sales under a decree.” Murray v. De Rotterheim, 6 Johns. Ch., 52. See 9th Equity Rule U. S. Courts; Daniell’s Chancery Practice, vol. 2, top page 1062, note 3.

This power was very properly exercised by the court, in this case, for the purpose of letting the purchaser into the possession and enjoyment of the property purchased under the decree' of the court, without the necessity of resorting to an expensive and vexatious suit, to attain, after much delay, the same object.

The judgment is affirmed.

Affirmed.

[Opinion delivered April 24, 1883.]  