Miller v. Wilson

Bartol, C. J., delivered the opinion of the Court. The order from which this appeal was taken was passed by the Circuit Court for Prince George’s county, on the 22d day of April, 1869, awarding a writ of habere facias possessionem to the appellee, who had purchased at sheriff’s sale, under a writ of fieri facias, a lot of ground in the possession of the appellant, the defendant in the judgment upon which the execution had been issued. The lot of ground was seized and sold as the property of the appellant. At the sheriff’s sale the property was' purchased by the appellee.

No question is raised upon the form of proceeding for obtaining the writ; it is in conformity with the Code, Article 75, section 64, as amended by the Act of 1864, ch. 283. The appellant, in answer to the rule to show cause, filed a paper setting forth the reasons or grounds relied on to defeat the application for the writ. To this paper a demurrer was filed, and the question before us, therefore, is, whether the causes alleged by the appellant are sufficient in law to prevent the issuing of the writ. These present two subjects of inquiry: 1st, As to the regularity of the seizure and sale by the sheriff, and the sufficiency of his return to the execution. 2d.

As to the nature and character of the appellant’s possession. 1st. As we have construed the paper filed by the appellant, we understand the several objections made to the proceedings ²⁹⁹ by the sheriff, under the Avrit of fieri faeias> to resolve themselves into the question of the regularity and sufficiency of those proceedings, as disclosed by tbe return to the writ. The allegation is, “ that the sheriff has pretended to levy upon the rights of this defendant, and did proceed to sell the same without any appraisement, not showing in his return what day the sale took place, whether he gave the notice required by law, or that it was placed at the court-house door, or what day it was placed there, if at all; nor does it appear when the levy was made, when and where said sale was made, nor sufficient and proper statement of the amount realized; no receipt nor docket entries to show that the money has been made and paid.” The paper then goes on to reiterate the same averments as to the insufficiency of the levy, Avaxxt of proper notice of sale, &c., not, however, alleged as facts within the knoAvledge of the appellant, verified by his oath, and admitted by the demurrer, but as matters appearing upon the face of the sheriff’s return. In order to see whether these objections are well founded, avo must refer to the proceedings under the execution.

The writ of fieri facias was issued on the 12th day of January, 1864, returnable to the April term thereafter, upon, a judgment rendered against the appellant, Miller, in favor of Wilson, administrator of Bunnell. On the 16th day of May, 1864, the sheriff made return of the writ, setting forth his seizure and sale thereunder, of a lot of ground, as the property of Miller, the defendant, in the execution and then in his occupancy and possession. Ho jxossible objection can be made to the levy, or to the designation of the property seized and sold; in these respects the sheriff’s return is full and sufficient. It does not state Avhen and where the property xvas sold, nor that public notice, as required by laxv, Avas given of the sale.

Accompanying the return, as part of it, is an advertisement signed by the sheriff, setting forth that the property would be sold at public sale to the highest ³⁰⁰ bidder for cash, at the residence of George H. Miller, on Friday, the 5th day of February, 1864, at 12 o’clock, M. The language in the return imports that the property was sold at public sale, it states that “the said real estate and premises were sold