Gilcreest v. Magill

Mr. Justice Lawrence delivered the opinion of the court: One Robert Wade purchased a mortgage upon certain real estate, and at the sale under the decree, one Cleave became the purchaser. He afterwards assigned the certificate of purchase to Magill, the appellee. The latter filed an affidavit showing Gilcreest, the appellant, to be in possession of the mortgaged premises, and that he refused to surrender possession, and praying for a rule upon him to show cause. The rule was granted, and Gilcreest appeared and proved that he had taken possession of the premises under a five years’ lease from Wade, before the commencement of the suit to foreclose, and had remained in possession from that time to the present. He was not a party to .the bill of foreclosure. Thereupon the court made an order that he deliver the possession to Magill, from which order Gilcreest appealed. The order was erroneously made. This same point was before this court at the Ottawa term, 1864, in the case of Brush v. Farlee. It was there held that a writ of assistance could not issue against a person in possession of premises sold under a decree rendered in a suit to which he was not a party, if his possession began before the commencement of the suit. ¡Not being a party nor coming in pendente lite, his rights are in no way affected by the suit, and cannot be adjudicated in this summary manner. The order for the delivery of possession will be set aside. Decree reversed.