Oglesby v. Pearce

Citations

• 68 Ill. 220

Syllabus

<p>1. Wbit of possessioh—how obtained. The practice in this State, where the decree orders the defendant in a chancery suit, on the execution of a deed by the master in chancery, to surrender possession, is, to serve a copy of the decree on the defendant in possession, or if others are in under him as purchasers, tenants, or otherwise, then upon them, and on the possession being refused, the court, upon affidavit of the facts, will award a writ of possession.</p> <p>3. But where the decree of sale fails to order the surrender of possession, and the person in possession refuses to give it up, the court will, on proper notice and motion, make such an order, and upon like service of a copy, and demand of possession, will, on motion, without notice, order the part}' to deliver possession, and then on affidavit of the service of the order, and a refusal to obey it, a writ of assistance directed to the sheriff to put the purchaser into possession, issues, of course, on motion, without notice.</p> <p>3. Same—petition for, and parties to. A petition for a writ of possession which fails to show that the defendants against whom the proceeding is brought, are in possession of the land, is fatally defective. If persons are in possession as the tenants of the defendant in the original decree, or otherwise, that fact should be set forth in the petition, and they be made parties, and served with notice, and, if the facts warrant it, an order should be made upon them for possession, and on a failure to comply with it, the writ should be awarded against them and the original defendant.</p>