| Ill. | Jan 15, 1859
That portion of the final decree which awards a writ of possession, we think erroneous. The affidavit which was filed in resistance of that portion of the decree, sets up new matter, which occurred after the former decree in the cause, ordering the property to be sold, and hence, this was the first time when it could be presented to the consideration of the court. It is not necessary now to determine definitely, whether the affidavit makes out such a case as would certainly enable the defendant to maintain his possession in an action of ejectment, or such a case as would demand of a court of equity to decree a specific performance of the agreement therein stated. It is sufficient that he has shown facts, which should convince the court that his claim to such a case is not a mere frivolous pretense, to delay the assignee of the purchaser, in the possession of an undoubted right. While the court of chancery has an undoubted jurisdiction to award the writ of possession in execution of its decrees, this it will not ordinarily do, and never, where there is any reasonable prospect that the party in possession may make a successful defense of his possession, either at law or by the aid of a court of equity. That portion of the decree which awards the writ of possession, must be reversed, and the balance affirmed—each party to pay half the costs here.
Walker, J., having tried the cause in the court below, took no part in the decision of this case.