Tucker v. Stone

• Decision Date: 20 March 1894
• Citation: 99 Mich. 419,58 N.W. 318
• Court: Michigan Supreme Court
• Parties: TUCKER v. STONE et al.

58 N.W. 318

99 Mich. 419

TUCKER v. STONE et al.

Supreme Court of Michigan

March 20, 1894

Appeal from circuit court, Newaygo county, in chancery; John H Palmer, Judge.

Action of foreclosure by Curtis M. Tucker against Chester A. Stone and Harriet Stone, in which there was a sale of the mortgaged premises and an order of confirmation. A writ of assistance was also awarded complainant as purchaser of such premises at the foreclosure sale. From an order denying a motion to vacate such writ, defendants appeal. Affirmed.

William D. Fuller, for appellants.

Edgar L. Gray, (Francis A. Stace, of counsel,) for appellee.

LONG, J.

This is an appeal from an order denying a motion to vacate a writ of assistance awarded the complainant as purchaser of mortgaged property on a foreclosure sale. The motion was based upon the sole ground that there was not sufficient evidence before the court of the exhibition to the defendants of the deed of the circuit court commissioner and a certified copy of the order of confirmation, as required in the decree, to give the court jurisdiction to order the writ. The petition for the writ of assistance sets forth the making and entry of decree of sale the sale of the premises, the execution of the deed by the commissioner, and of its record; also, that the defendants were in possession, and "that on the 14th day of June 1893, your petitioner peacefully applied to the said defendants, and in a friendly manner presented and exhibited to them the said deed of the said circuit court commissioner made to your petitioner aforesaid, of said land, and also a copy of the order confirming such sale, duly certified by the register of this court, and requested and demanded of said defendants, Chester A. Stone and Harriet Stone, that they should forthwith surrender and deliver up possession thereof to your petitioner, as in and by said decree provided, and as in equity they ought to have done; but so to do the said defendants absolutely refused, and still do refuse, and retain possession of said last-mentioned land, against the rights of your petitioner." It appears that an order of sale was entered in the cause on March 14, 1892. Exceptions were taken, within the eight days, to the report of sale, and afterwards were overruled, and on June 14, 1893, the sale was finally confirmed. No question is raised but that the sale was duly confirmed on June 14th; but the contention is that the...