Kessinger v. Whittaker

Citations

• 82 Ill. 22

Syllabus

<p>1. Writ of possession—want of proper parties to bill. A writ of possession may properly be ordered against a party entering into possession of mortgaged premises under the mortgagor after bill to foreclose, notwithstanding others having an interest are not made parties, where the entire interest is sold under the decree. Such party not claiming under them, can not object that they were not made parties to the bill.</p> <p>2. Same—remedy concurrent with forcible detainer. The remedies given a purchaser of land under a decree of foreclosure, by writ of possession and by forcible detainer, are concurrent, and both may be pursued until a satisfaction is had. The pendency of proceedings by forcible detainer for possession, on appeal, can not be set up in abatement of a motion for a writ of possession in the original cause.</p> <p>3. Same—nature of proceeding. A proceeding by a purchaser on fore-' closure to obtain a writ of possession by motion, is not the institution of a new suit, but is only another step in the foreclosure suit, and for this purpose the purchaser, and he who meddles with the property after bill filed, becomes a party to the decree of foreclosure.</p> <p>4. Same—judge may order in vacation. A judge of the circuit court, under our statute, has the power, in vacation, to order the issuing of a writ of possession, to carry into effect a decree of the court.</p> <p>5. Same—when order to deliver possession is necessary. It is only where, a decree of foreclosure contains no order for the surrender of possession that such order to deliver possession is necessary before a writ of possession can be issued. If the decree contains such an order, no further order is required.</p>