Cooke v. Brice

Bartol, J., delivered the opinion of this Court: This was an application under the Act of 1825, ch. 103, for a ‘‘writ in the nature of a writ of habere facias possessionem,” made by the appellee, who had purchased a lot of ⁴⁰⁰ ' ground in' the City of Baltimore, seized and sold by the sheriff under an execution issued out of the Court of Common Pleas, upon a judgment recovered in that Court by the appellee against the appellant. The judgment was rendered in November 1859, and the sale made on the 18th of June 1860. The judgment, the execution thereon, the sale made by the sheriff, and his return to the writ of fieri facias, were all legal and regular; no valid ground of objection to any of them has been suggested. The application for the writ was made in due form, and notice to shew cause, was served upon the appellant, as required by the Act of 1825.

Accompanying the application for the writ, the appellee filed the affidavit of Joseph N. Vallee, stating that the appellant was residing upon the property' which had been seized and sold by the sheriff, and refused to surrender the possession thereof to the purchaser. He also filed a duly authenticated copy of an indenture of lease, made by Charles E. Mayer, trustee, conveying to Eber E. Cooke, the appellant, the lot of ground in question, for the term of ninety-nine years, reserving a certain rent therein mentioned. The indenture of lease was dated the 28th day of March 1853, and was acknowledged and recorded according to law. By way of shewing cause against the writ, the appellant filed his answer to the petition alleging, substantially, that the property sold, belonged to his wife and children; having been devised to them by the last will of William Mann, which will is exhibited with the answer; and that at the time of the sale and long before, the said property was in the actual possession of Mrs. Cooke and her children, to whom it belonged, and not in the possession of the appellant, except as trustee for their benefit; and further alleging that on the 16th day of December 1854, an order was passed by the Superior Court of Baltimore City, appointing him trustee for said estate, in virtue of which he bonded,” and in support of this allegation exhibited the certifi ⁴⁰¹ cate of the clerk of the Circuit Court for Baltimore City, setting forth that it appeared from the proceedings of that Court in the case of Eber F. Cooke & Euphrasia Frances his wife, vs. William Fennimore Cooke, &c., that Eber F. Cooke was appointed trustee in the place of Charles E. Mayer, Esquire, former trustee, and filed his bond as trustee on the 17th January 1855.

There was also filed with the answer the affidavit of Euphrasia Cooke, William Fennimore Cooke and Warren E. Cooke, (the wife and children of the appellant,) setting forth that they believe themselves to be the only rightful owners of the property in question, in virtue of the will of William Mann, deceased; and that long before the recovery of the judgment against Eber E. Cooke, they were, and so continued, in the actual possession of the property; that said Eber E. Cooke lived thereon with them “of their courtesy and of no right vested in him.” An affidavit of Eber F. Cooke was also filed, stating substantially that he had leased the property in question from Charles E. Mayer, trustee, for the purpose of protecting the interests of his wife and children, who were the beneficial owners thereof. That he became subsequently trustee in the place of said Mayer, of the estate of his wife and children, including the property in question; and