O'brian v. Abraham B. Fry.
| Decision Date | 30 June 1876 |
| Citation | 82 Ill. 87,1876 WL 10137 |
| Parties | HENRY O'BRIAN et al.v.ABRAHAM B. FRY. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Jefferson county; the Hon. TAZEWELL B. TANNER, Judge, presiding. The record shows that, at the March term, 1872, a decree in chancery was rendered in the circuit court, in a proceeding to foreclose a mortgage, wherein Fry was complainant and O'Brian and his wife were defendants, by which decree it was “adjudged and decreed that defendants pay, in thirty days, $556.33, and that, in case the defendants should make default in the payment of the said money, then, and in that event, the said defendants are hereby required to surrender immediate possession of the said mortgaged premises to the complainant.” The decree further provided, that a commissioner (named) should proceed to sell the mortgaged premises (directing, in detail, the mode of sale), and that, in default of redemption, the commissioner should convey the premises to the purchaser. It was further ordered, that the commissioner should report his proceedings at the next term, and that the cause stand continued for report.
At the June term, 1873, the commissioner submitted his report, which, upon examination, was approved. The report stated, that on the 15th day of June, 1872, he had, in pursuance of the decree, sold the mortgaged premises to the complainant, and it was thereupon “ordered by the court that this cause go off the docket.”
On the 16th day of July, 1875, the commissioner made a deed, in pursuance of that sale, by which he conveyed the premises to Fry.
At the February term, 1866, Fry filed, in writing, his “application and motion for a writ of possession,” in which he stated, the rendering of the original decree, the making of the commissioner's sale in default of payment, the failure to redeem, and that Fry took a deed therefor from the commissioner and is now entitled to possession, and that O'Brian and wife are still in possession, “and refuse, on request and demand, to surrender the same to Fry;” that copies of the decree and report of sale, and notice of this application, were served upon O'Brian and his wife on the 22d day of January, 1876, and in which Fry prayed that, on hearing of this motion, the court would “grant and order that a writ of possession issue,” and that the defendants be immediately dispossessed and the possession be at once surrendered and delivered to the petitioner.
On the hearing of this application, at that term, the facts above stated were proven, and the court overruled the exceptions of defendants to the same, and “adjudged that said motion be allowed, and that a writ of restitution be awarded to said plaintiff; that defendants are required to surrender possession of the mortgaged premises,” (describing them.)
From this order O'Brian and his wife bring this appeal.
Mr. T. S. CASEY, and Mr. C. H. UPTON, for the appellants.
Messrs. W. & E. L. STOKER, for the appellee.
In a proceeding in chancery to foreclose a mortgage by sale of the mortgaged premises, it...
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Herrington v. Herrington
...on Injunctions, § 438. A decree providing for possession by the mortgagee before the expiration of the time of redemption, is bad: O'Brian v. Fay, 82 Ill. 87; Baker v. Scott, 62 Ill. 86; Flowers v. Brown, 21 Ill. 270. An injunction will lie to prevent a trespass or to quiet possession: High......
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Clay v. Hammond
...in possession of the premises. Aldrich v. Sharp, 3 Scam. 261; Bennett v. Matson, 41 Ill. 332;Kessinger v. Whittaker, 82 Ill. 22;O'Brian v. Fry, 82 Ill. 87. In such case, however, the purchaser at the foreclosure sale, whether he be the complainant in the foreclosure suit, or a third person,......
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Harding v. Le Moyne 1
... ... Aldrich v. Sharp. 3 Scam. 261; O'Brian v. Fry, 82 Ill. 87; Kershaw v. Thompson, 4 Johns. Ch. 609. But this general rule is not without its ... ...
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Harding v. Le Moyne
...vendor's lien, and the like, the court should extend the same relief to a purchaser under the decree. Aldrich v. Sharp. 3 Scam. 261;O'Brian v. Fry, 82 Ill. 87;Kershaw v. Thompson, 4 Johns. Ch. 609. But this general rule is not without its exceptions. Thus, in 2 Jones, Mortg. § 1664, after h......