Murphy v. Abbott

Wilson, J. Various questions were discussed upon the hearing by counsel for appellants, in relation to the power of a court of chancery in foreclosure proceedings to enforce its decree for the surrender of possession by proceedings for contempt, and as to the proper remedy when possession, is refused, which it is 'unnecessary to consider, as the order for commitment must be reversed upon other grounds which will dispose of tire case.. The record fails to show that the steps prescribed by the decree, as well as required by the proper practice of courts of chancery in foreclosure suits, were taken to charge the defendants with contempt in failing to surrender possession of the premises. By the terms of the decree, it is provided that, upon the production of the master’s deed, and a certified copy of the order confirming the sale, possession be delivered to the purchaser, and a refusal so to deliver would he considered a contempt of court. Without determining whether it was competent for the court to thus prescribe in advance what should constitute a contempt, it was indispensable'that before the defendants could be adjudged in contempt, for a violation of the decree, a master’s deed should have been produced to appellants, and also a certified copy of the order confirming the sale, and these should have been accompanied with a demand for possession. So far as the record discloses, neither of these prerequisites was observed. It does not appear-that a deed was ever executed, nor is it shown that a certified copy of the order confirming the sale was ever made out or shown to appellants. By the express terms of the decree, appellants were entitled to both before they could be required to decide upon their course of action; and until both were produced, their refusal to surrender possession was not in violation of the mandate of the decree. By the statutes of this State, a purchaser at a sale under a decree of foreclosure, is not entitled to possession, until a deed to him has been executed by the proper officer. Until such deed has been executed, the proceedings arestil\in fieri, and as was said in Bennett v. Matson, 41 Ill. 332, “ until the purchaser obtains his deed he is for most purposes a stranger to the possession. ” In Fackler v. Worth, 13 N. J. Eq. R. 395, it was held that an order to deliver possession to the purchaser of mortgaged premises, under a decree of foreclosure, will be made only upon proof that the deed was shown to the person in possession, a demand for possession, and a refusal to comply made. And so are the authorities generally. Kershaw v. Thompson, 4 Johns. Ch. R. 609, and cases there cited. But independent of the terms of the decree, and of statutory provisions, by the settled course of chancery practice in foreclosure suits, the production of the master’s or commissioner’s deed, is a necessary preliminary step to an enforced surrender of the premises to the purchaser. 2 Dan. Chy. Pl. & Pr. There seems to have formerly been some question whether courts of chancery would enforce their decrees for possession by process, for the actual delivery of possession, or would remit the purchaser to his action of ejectment, or other appropriate remedy. But in Kershaw v. Thompson, supra, Chancellor Kent gave the subject a careful examination, and held that the proper practice is for the court to execute its own decrees. Tie says: “It does not appear to consort with sound principle, that the.court, which has exclusive authority to foreclose the equity of redemption of a mortgage, and can call all the parties in interest before it, and decree a sale of the mortgaged .premises, should not be able even to put the purchaser into possession, against one of the very parties to the suit, and who is bound by the decree.” And such we understand to be the established practice in the English chancery courts. Penn. v. Ld. Baltimore, 1 Ves. 444; Huguenin v. Baseley, 15 Ves. 180; Stribley v. Hawkie, 3 Atk. 275; See also, Valentine v. Teller, Hop. Chy. R. 480; Fackler v. Worth, supra. But while it may be considered settled that the court will •by its writ of assistance, or other proper process, put the purchaser in actual possession, it does not seem so clear from the authorities that it will resort to the more indirect mode of enforcing a surrender by attachment for contempt. It is said in Valentine v. Teller, that the writ of assistance is in ordinary cases, the only process of giving possession of land, under an adjudication of the court of chancery in Mew York, that being the process which effectuates the object sought, in the most simple and direct manner. And in New Jersey, Fackler v. Worth, 13th N. J. Ch. 395, it is held that the injunction, as well as the attachment to enforce obedience to the order, ought to be dispensed with, in accordance with the modern practice in England and New York. But if proceedings through the medium of attachments for contempt are admissible, they must be carried on stricti juris, and the party resorting to them, must show a full compliance with all the required conditions preliminary thereto. In the present case, that has not been done. The complainant having failed to produce the master’s deed, and a certified copy of an order confirming the report of sale, no foundation for contempt proceedings was laid, and the judgment of the court below was erroneous. Judgment reversed.