60 Md. 593 | Md. | 1883
delivered the opinion of the Court.
The appellee filed his petition, in the Circuit Court for Grarrett County, for the writ of habere facials to put him in possession of certain land alleged to have been bought by him at sheriff’s sale. Ho question arises on the proceedings for the writ. They are conceded to be regular. The defence interposed rests on a claim of paramount title and alleged irregularities in the executions and proceedings under them, through which the appellee purchased.
Maria L. Deakins, in her separate answer, only claims title to eight acres of the property sold to the petitioner; and her superior right being conceded, so much of the land was excluded in the order for the writ and is not now involved. William E. Deakins, in his answer, rests his right of possession, as against the writ and the petitioner,— First, on a demise of the land to him from one Virginia Pendleton. Secondly, because of irregularity in the writs of fieri facias, and proceedings under them, culminating in the appellee’s purchase at the sheriff’s sale. Thirdly, because of the pendency of certain ejectment suits in the Circuit Court of the United States for the District of Maryland, for the same laud. And lastly, on the general ground, that petitioner has no title, which includes the contention that only an equitable title was sold at best, which this possessory writ cannot give possession of.
Reversing the order of objections we will begin with the last. Article 83 of the Code, section one, authorizes
The appellants being in .possession of eight acres of the land rightfully, to that extent the application for the habere lias been abandoned; and their possession must be referred to their title, and restricted to its limits according to their evidence. This Court said, in Shaefer vs. Amicable Permanent Land & Loan Co., that “good cause, in the sense of the statute, implied not only averments, but evidence to sustain them constituting good cause to the contrary.” 53 Md., 89. This evidence we have shown is wanting.
With respect to the alleged pendency of ejectment suits in the Circuit Court of the United States for the same land, we need only say, that wre can see no possible ground for denying the writ of habere, even if there were sufficient evidence of the pendency of such suits, (between the same parties,) lor the trial of the title to the land in question. The only suit, of which there is evidence, is not between the same parties. This proceeding is simply an application to the Court to enforce the purchaser’s right of possession, under his purchase from the sheriff, at the sale made under the execution on the judgment which
This brings us to consider whether that process was regular and valid.
The appellee admits there were irregularities in the proceedings on the Rex judgment, but insists they were not such as rendered the same void. The only judgment which was ever rendered in favor of Rex vs. Pendleton, was one of condemnation, of the land now in question, for the payment of the sum' sued for. There never was any personal judgment against Pendleton. The execution which was issued, and was, no doubt, intended to- be an execution upon the judgment of condemnation, instead of reciting the judgment of condemnation, recited a judgment in personam of same date and for same amount as the judgment of condemnation. That fieri facias was returned “ levied and on hand for the want of buyers.” A venditioni exponas followed, in which the same error was repeated, in respect to the recitals, and the additional error was committed of issuing the venditioni exponas to the sheriff .of the county for the time being, instead of to the ex-sheriff who had made the levy under the fi. fa., and returned it unsold for want of buyers. At common law the vendi. always issued to the sheriff who had tlie fieri facias whether he had gone out of office or not; and the case of Purl’s Lessee vs. Duvall, 5 H. & J., 69, recognizes this as the practice and law of this State. By section 30,
We do not see how, upon reason or authority this objection can avail the appellants. It is laid down in Herman
We think the Circuit Court committed no error in ordering the writ of habere facias to issue.
Affirmed, and cause remanded.