Morrill v. Gelston

Maulsby, J., delivered the opinion of the Court. This is an appeal from an order of the Superior Court of Baltimore city, directing a writ of habere facias possessionem, to compel the delivery by the appellant to the appellee of the premises in the proceedings mentioned. They had been sold, under a decree in an ex parte proceeding, to foreclose a mortgage given by William M. Willis to the appellee, under the provisions of Article 4, sections 782, &c., of Public Local Laws, Baltimore city. A petition for a writ of habere facias was filed April 6th, 1861, alleging that the appellee had, through his agent, “ demanded possession of the occupants, viz: either the defendants or tenants of said property, who were in pendente lite, such at the time of the sale, and that said occupants have refused to vacate and yield to him possession,” and praying “that the parties in possession, known as Mrs. Morrill and Judge Peters,” may be required to shew cause why a writ of habere facias possessionem should not issue, &c.

On the same day an order was passed directing “ a copy of the petition and order to be served on the occupants of the premises in the petition referred to, on or before Wednesday, ¹¹⁸ 10th of April next, requiring the said occupants to show cause on or before. Saturday, 13th of April next,” why the writ should not issue as prayed. Immediately under the order is endorsed: “ See 39 Rule Eq.” There is an affidavit of John P. P. Jones that, on the 3d of March, he demanded for the appellee possession of the premises, and received for answer that the matter should be investigated, and if the proceedings were regular they would vacate, and that, on the 22d or 23d of March, Mr. Peters told him they meant to contest the .matter. On the 13th of April Mrs. Morrill and J. M. Peters answered, saving the benefit of all exceptions on all gronnds to the petition, Mrs. Morrill denying that she is a tenant of Willis or Gelston, and alleging that she is in possession by conveyance to her, by title adverse to Gelston and to the decree under which he claims, and denying that any decree under which Gelston claims has any validity against her title and possession.

Mr. Peters alleging that he is not in any way tenant, and is merely a boarder in the house, and disclaiming any interest. Before the final hearing, the appellant filed a deed from Frederick R. Waesche to her for the premises in question, dated 27th of October, 1859, in which the consideration paid by her to Wacsche was $1,100.00. This deed conveyed the property to her subject to the operation of hoo mortgages from William M. Willis, one to John S. Donnell and others for $1,000, and the other to Hugh Gelston for $400, and the appellee filed his title paper, a deed from the trustee, under the decree, bearing date 1st of March, 1861, the same day of the final ratification of the sale. On June 22d, 1867, an order was passed making absolute the rule nisi of April 6th, 1861, which required the occupants of the premises to shew cause why a writ of habere facias possessionem, should not issue, and from this order the appeal is taken.

The proceedings to obtain a writ of habere facias in this case were not under sec. 64, Art. 75, of the Code. An exami ¹¹⁹ nation of that section will shew that its provisions apply to eases of process of execution, and to the debtor in the execution or any other person holding under the debtor, by title subsequent to the judgment or decree. The foundation of those proceedings must be, if it exist, in the powers of a Court of Chancery to enforce its decree. The usual practice in this State for enforcing the right of purchasers to possession is announced by Mr. Alexander, in page 153 of his book.

He refers to 1 Bland, 363 , and Chancellor Bland refers, for the authority of a Court of Chancery to cause possession of land sold under a decree, to be delivered to the purchaser “ under certain circumstances,” to Stribley vs. Hawkie, 3 Atkyns, 275, and to Dove and Dove, 1 Brown’s Ch. Rep., 376, (marg.) These cases shew that the rule in England, prior to the Statute of 1st and 2d Victoria, ch. 110, was to proceed by order, attachment, injunction and writ of assistance, to compel a tenant in possession to deliver possession to the purchaser. The note to the case of Dove and Dove, refers to Dickens for a fuller report, and states the practice to be: 1st, service of the writ of execution of the decree, an affidavit of it and of the parties’ refusal; 2d, an attachment issued thereon, but not to Be executed; 3d, an injunction granted on such attachment, as of course; 4th, a writ of assistance directed to the sheriff, to deliver possession. It further states that the first exercise of the power to compel the delivery of land by a Court of Chancery was in the reign of James I, in a case in 1