Under a foreclosure decree in this case, it was provided that defendant should pay the sum due by March 15,1883, and in default of payment that the premises *176might be thereafter sold. Instead of pursuing this decree, the circuit court commissioner advertised on the 21st of December, 1882, and sold on February 3,1S83, and an order nisi was entered February 23, 1883. No notice of any of these matters was given defendants. The commissioner reported a deficiency. On application for execution these facts appeared, and the court below refused to grant it, and complainant appeals.

The sale was premature and illegal, and defendants cannot be deemed to have waived any right, when they were not bound to suppose any sale could be had or report filed prematurely. The case is too plain to bear discussion.

The order must be affirmed with costs.