82 Ill. 87 | Ill. | 1876
delivered the opinion of the Court:
In a proceeding in chancery to foreclose a mortgage by sale of the mortgaged premises, it is competent and regular for the court, in the original decree fixing the amount of the mortgage debt, and ordering a sale, to make an order that the mortgagor shall surrender to the purchaser the premises sold, after the expiration of the time allowed by law for redemption, and upon the making of the master’s deed. Where such order is contained in the original decree, the purchaser may have an order for a writ of possession, or, as it is called, a writ of assistance, commanding the sheriff to put him in possession.
To procure an order for such writ, the purchaser must show to the court, upon affidavit, that, after receiving his master’s deed, he has caused a copy of the original decree to be served upon the mortgagor in possession, and has demanded the possession under his deed, and that possession has been refused.
Where the original decree contains no such order, the court, on notice to the mortgagor in possession, and on motion made after the making of the master’s deed, will order that the mortgagor surrender the possession to the purchaser.
On proof by affidavit of the service of a copy of this order, and of demand made for possession under the order, and of a refusal to surrender the possession, an injunction issues enjoining a compliance with this order; and upon the service of this injunction, on motion, a writ of -assistance will be ordered to issue to the sheriff.
In this case no order is contained in the original decree requiring possession to be surrendered to the purchaser, on the making of the master’s deed.
The decree, after fixing the amount of the mortgage debt, gives a time for payment, and orders that, in default of payment, the possession shall immediately be surrendered to the complainant, and then the decree proceeds further, and orders the master’s sale, but the decree makes no provision for the delivery of the possession to the purchaser, by the mortgagor or mortgagee. The rights of the petitioner in this case rest upon his character as pv/rchaser at the sale, and he has, as such, no rights other than a stranger would have, as such purchaser.
It is not to be supposed that, at the sale, the complainant, if he became a purchaser, would have any rights save those which any other purchaser would acquire.
The order for an immediate surrender of possession to the complainant, contained in the decree for a sale, though erroneous, was not void. It applied, however, only to the possession for the time intervening between the decree and the sale. When that time lapsed without the execution of the decree, it had spent its force.
The mortgagor had the right to the use and possession of the property from the date of the sale until the making of the master’s deed after the time for the redemption from the sale had elapsed. Petitioner’s rights as mortgagee were gone, for the mortgage debt was satisfied by the sale.
- The original decree having made no provision for putting the purchaser in possession on the making of the master’s deed, no writ of possession or writ of assistance could regularly be ordered to issue until an order for possession had been procured, on no,tice, and a demand for possession under the order, accompanied with a copy of such order, had been made and possession refused. The steps necessary in such case are explained in the opinion of this court in the case of Oglesby v. Pearce, 68 Ill. 222, and need not be repeated here. The proofs in this case show no- demand for possession, and no refusal to surrender possession. Each of the three essential preliminaries to an order for a writ of assistance, is wanting. There is no previous order that defendants surrender possession to the purchaser. There is no demand of possession, and no refusal to surrender the possession.
The final order in this case is reversed.
Decree reversed.
