Majority
p. 107MONTGOMERY v. BYERS et al.
Headnote
A person who, pending an action for the foreclosure of a mortgage and with notice of its pendency, purchases from one of the defendants therein a portion of the mortgaged premises, occupies the same position as his grantor in reference to the issuance of a writ of assistance in favor of the purchaser under the decree.The doctrine of Montgomery v. Middlemiss, (ante p. 103) in reference to the issuance of writs of assistance, affirmed and followed.
Appeal from the Fifteenth Judicial District.
p. 108
Application for a writ of assistance by the same party and in the same action as in the preceding case of Montgomery v. Middlemiss. Pending the foreclosure action the jilamtiff therein conveyed to one of the defendants, Margaret L. C. Wilson, his interest in a portion of the mortgaged premises, and the respondents purchased from her with notice of the pendency of the action before the entry of the decree of foreclosure, and being in possession of the portion thus purchased resisted the application of the plaintiff for a writ of assistance. The application was denied by the District Court, and the plaintiff appeals.
Geo. Cadwallader, for Appellant.
Belcher & Belcher, for Respondents.
Norton, J. concurring.
The respondents purchased of one of the defendants after the commencement of the action, and with notice of its pendency. They occupy, therefore, the precise position of their grantor. In other respects the case is covered by the decision in Montgomery v. Middlemiss—recently rendered. Upon that authority the order of the District Court must be reversed, and that Court directed to issue a writ of assistance as prayed in the petition of the plaintiff.
Ordered accordingly.