Nutwell v. Nutwell

Alvey, J., delivered the opinion of the Court. By a fair and liberal construction of the Act of 1864, ch. 283, it would seem to be clear that the proceedings authorized hy that Act, where the sale has been made under a decree of a Court of equity, may be taken in the cause in which the decree was passed ; and that a separate and independent proceeding at law is not, in such case, necessary or proper. Such proceeding, as to sales under decrees, is but a substitute for the less summary proceeding previously resorted to by purchasers, to obtain possession of land purchased under decrees ; but the Act does not in any manner lessen or affect the right of the party against whom the proceeding is taken to resist and defeat the application for the writ by showing sufficient cause against it. And it would seem to he equally clear that the heirs-at-law of the original debtor, who were parties to the cause in which the decree was passed, and who retain the possession of the estate devolved on them by descent, may be considered debtors within the reason and purview of the Act.

They are debtors in respect of the land descended, and if they do not pay such debts, they will be deprived of the land by proceeding to have it sold for the debts ; and the decree for sale is conclusive against their right to hold the land under the title derived from the ancestor, after sale and ratification. But if the parties in possession, though concluded as to the title descended from their ancestor, acquire title to the land, or to the possession thereof, subsequent to the decree, whether from the purchaser or other person capable of imparting it, such right or title may well be set up in answer to an application to compel them to surrender the possession. And it matters not that such right or title he only of an equitable nature. In this case, if the party returned as the purchaser hy the trustee had made a lease of the land to the parties in ⁴⁴ possession, or had entered into an explicit agreement to sell the land to them, and they, being in possession, had, in execution of the agreement, paid a considerable portion of the purchase money, and such dealing between the parties in respect to the land was so clearly proved as to leave no doubt upon the subject, we can hardly suppose it possible that the right so acquired would not afford an answer to an application1 for the writ to remove the parties from the possession.

And if an answer in. such case, why not in this P Here, the parties claim to be rightfully in j>ossession, and they are called in to answer the application for the writ in the nature of a writ of habere facias possessionem, and to show cause why the writ should not issue. What can be the meaning of the Act, if it cannot be shown that the party applying for the writ is not entitled to the possession as against those holding it ? No right is set up by the parties proposed to be removed that has been in any manner determined by the decree, or by any order made in reference to the sale. The appellants allege, that while the appellee has been reported the purchaser of the land, he was so reported by and through an understanding and arrangement with them, that the land should be and was bid in for them, and that they were to retain it, and pay a certain amount for it; and that such understanding has been recognized and acted on for a considerable time by all parties concerned, and that the appellants, in pursuance of and compliance with such understanding, have actually paid a considerable sum on the purchase ; and that the attempt to oust them of the possession of the land is a fraud upon their rights.

And instead of meeting 'these allegations by denial or explanation-, the appellee has demurred to them, and he thereby admits the allegations as made in the answer. Now, if these allegations are taken as true, as they'must be, as the case now stands, every principle of justice would seem to remonstrate against the issuing of the writ. ⁴⁵ And it will not do to say that this is not the proper proceeding in which to try the question of right as between the parties . While that may be true as a general proposition, yet the rights of the parties must be considered in order to determine how and in what character, and under what title, the party in possession holds as against the party asking the aid of the Court. Gowan vs. Sumwalt, 1 Gill & J., 511; Cook vs. Brice, 20 Md., 397 .

And to show the necessity of this, we may state a case within the very letter of the statute. Let us suppose it to be alleged that the party in possession holds under the debtor by title subsequent to the date of the judgment or decree, under which the land wras sold, and such party, upon being called in to show cause against the issuing of the writ against him, should allege that the title under which he holds was not subsequent, but prior to the judgment or decree, or derived from some other source than the debtor ; surely, in such case, the writ would not be allowed to go as matter of course, but it would be necessary to determine the question, before issuing the writ, whether the party sought to be oirsted really held a title derived from the debtor subsequent to the date of the judgment or decree. Indeed, every application for the writ under the Act necessarily involves, to some extent, an inquiry into the nature and character of the holding by the party sought to be ousted. But the decision on these applications is by no means of a definitive character.

It only binds to the extent and effect of granting or refusing the writ. Parties are entitled to more formal and solemn proceedings for the ultimate and definitive adjudication of their rights. And in this case, the refusal of the writ will in no manner prejudice the appellee in his resort to the ordinary remedies for recovery of the land. If he has the deed from the trustee, he can institute an action of ejectment for the recovery of the land at once, and that will necessitate the filing of a ⁴⁶ bill in equity by the appellant for the enforcement of the understanding set up in the answer to the present application.

The refusal of the writ now asked for, if it should be refused upon further disclosure of the facts, will only conclude the appellee as to this particular form of remedy. (Decided 14th June, 1877.) It follows that the order appealed from must be reversed, and that the demurrer to the appellants’ answer be overruled, and the record remanded for further proceedings. The motion to dismiss the appeal must be overruled. The delay in sending up the transcript was imputable to no fault or neglect of the appellants.

Order reversed, and record remanded. The following dissenting opinion was delivered by Bowie, J.: The Circuit Court for Anne Arundel County, at April Term, 1871, in a creditors’ suit therein pending, in which John E. Hurst and others were complainants, and the appellee, George W. Nutwell, administrator of John Nut-well, deceased, and the appellants, children and heirs of said John, were defendants, passed a decree directing the lands of said deceased, to be sold by a trustee, etc. The appellee became the purchaser: the sale being finally ratified and confirmed, he demanded possession of the appellants, (the terre-tenants, at the date of the decree,) which being refused, the appellee filed his petition, verified by affidavit, alleging the foregoing facts, ■and praying an order for a “writ of habere facias possessionem. ’ ’ The appellants answered the petition, showing cause why the writ of “ habere ” should not issue. The appellee demurred to the answer ; which demurrer being ruled good, the Court, on the 24th of July, 1875, ⁴⁷ adjudged and ordered, that a writ in the nature of a writ of “ habere facias possessionem,” be issued as prayed. On the 30th of August, 1875, the appellants entered an appeal from the order, directing the writ of “ habere.” On the 26th September, 1876, the transcript of the record was filed in this Court.

A motion is made by the appellee to dismiss the appeal, because the transcript of the record was not brought up within six months from the time of the appeal prayed. This preliminary motion must be disposed of, before we consider the questions involved in the record. The appellants contend, that this motion should have been made in the Circuit Court, pursuant to sec. 30 of Art. 5, title appeals, of the Code of Public General Laws as amended by the Act of 1864, ch. 322, and cite the case of Meloy vs. Squires, 39 Md., 175 , in support of that position. The language of the thirteenth section of the Code is, “No appeals shall be dismissed, because a copy of the record shall not have been transmitted within the time required by law, if it shall appear to the Court of Appeals, that such delay was occasioned by the neglect or omission of the clerk; but if the clerk shall have prepared the record as required by law, and the appellant, or plaintiff in error, shall have neglected or omitted to pay for such record, or by any other neglect or omission on the part of the appellant or plaintiff in error, the said record shall not be sent to the Court of Appeals within nine months after the appeal has been entered or writ of error produced, the Court from ivhich the appeal toas taken, may on motion, strike out the entry of such appeal, and proceed to execution or other proceedings, as if such appeal had never been entered, and thereafter, no other appeal or writ of error shall be allowed.” By the new rules of this Court, the time for transmitting the record is reduced to six months, (Vide 29 Md.) ⁴⁸ The jurisdiction over the subject of appeals is, by the language of the above section, clearly not confined to the Court from which the appeal is taken, but is conferred on that Court only, under certain circumstances, in which the delay in the transmission of the record within the time prescribed, is owing to the appellant; where the delay is occasioned by the omission of the clerk, and it shall so appear to the Gourt of Appeals, the appeal shall not be dismissed; Thus it is apparent, there is a concurrent jurisdiction in the Court of Appeals, in cases where the clerk’s conduct is in question, or the question is, whether the delay is occasioned by the clerk, or the party appealing.

In the case of Meloy vs. Squires, the appellee filed a petition in this Court, stating that Meloy had appealed from certain orders or decrees of the Circuit Court for Prince