5 Mich. 456 | Mich. | 1858
This is an appeal from an order denying a writ of assistance to put a purchaser at a mortgage sale in possession of the premises.
We think the appeal will lie, unless it was discretionary-in the Court below to grant or refuse the writ, as it might think proper. In this sense it was not discretionary; but it was discretionary in the sense in which the granting or refusing of an injunction is discretionary — that is, in a doubtful case. The discretion in all such cases is a legal discretion, to be exercised in doubtful cases only, and not where the case is clear and free from doubt. It is then a strict matter of right, which the Court is as much bound to recognize and enforce as any other right of a party. The order denying the writ is a final order — one that is conclusive on the right of the appellant; which right is, to be j>ut in possession of the premises purchased by him at the mortgage sale, as an incident to his purchase. It is a right to the immediate possession of the premises against the parties to the foreclosure suit, and all who are bound by the decree, whether parties or not. It grows out of the decree and purchase under it, and can be enforced by the Court rendering the decree, and no other Court; and an order denying the writ of assistance to enforce it is a final order, touching the right, from which the purchaser may appeal to this Court.
The next question is,-Whether the appellant made out a case in the Court below entitling him to the writ. We think he did. Pierson is in possession, but he was not a party to the foreclosure, and we must refer to the facts to ascertain what his rights are, and whether the appellant is entitled to possession as against him. The bill was filed by Moore, to foreclose a mortgage given by Ives on the Wth day of January, 1853. Ives afterwards gave a second mortgage, and then sold the mortgaged premises to Larned, who afterwards mortgaged the premises three several times to as many different persons. The last of the mortgages was given to
The order denying applicant’s motion in the Court below, must be reversed with costs, and an order be entered for the writ of assistance; and the case be remitted, &c.