Schaefer v. Amicable Permanent Land & Loan Co.

Bowie, J., delivered the opinion of the Court. A sale of certain real estate described in the proceedings in this cause, having been made under an order of the Circuit Court of Baltimore City, and finally ratified by that Court on the fourth of November, 1878, the purchaser, (the appellee) filed their petition therein on the 20th of January, 1879, setting forth the previous proceedings, and alleging that the appellant, the respondent in said cause and mortgagor therein named, is now in possession of the property purchased, and refuses to deliver possession thereof to the appellee, although requested so to do, and prayed a writ in the nature of a writ of habere facias possessionem might issue to give them possession of the premises, etc. On this petition, the Court below passed an order granting the prayer of the petition, unless cause ⁸⁵ to the contrary he shown before the 15th of February ensuing. The appellant filed a paper, called her answer to this petition, showing for cause inter alia, as follows : “ That after the sale made in pursuance of the decree, the property having been purchased by complainant for $7000, and before the ratification thereof, to which respondent might and would have filed exceptions, an agreement in writing hereto annexed and marked respondent’s exhibit A, was entered into by the parties to the cause, by which it was stipulated, that if the respondent would pay the sum ascertained to he due by her to complainant, by the auditor, on or before a certain day in said paper named, that they would convey to her the property sold and reported to the Court. “ That in pursuance of said agreement and in consideration of forbearance to litigate the proceedings of complainant and trustee, under said decree which she had a right to do, and would have done, it was agreed that upon payment of $7000, she should he re-invested with the title to said property. That the time appointed by said writing for the performance of said agreement was extended, as it was understood it should he, for a period not to exceed four months; that the last proposition made by the complainant under said agreement was, that $5000 would he received, and a note with a responsible maker for the sum of $2000; that respondent asked for a change of terms, to wit, that $4500 and a note with a responsible maker for $2500 would he accepted; this latter proposition was entertained, and your respondent was induced to believe that it would he accepted; that she was prepared with the money to pay, and a responsible person signified his willingness to enter into the proposed obligation, hut it was declined not upon account of his irresponsibility, hut because they wanted the whole amount in cash. ⁸⁶ “ The time accorded your respondent to show cause why restitution should not he made according to the prayer of complainant’s petition, has heen wasted and exhausted by the false representations and pretences so made, and she avers, that the whole purpose of complainant has been to defeat her legal and’ equitable rights in the premises. “She further'says, that if reasonable time be allowed her she will be able to bring into Court the sum of $7000' in performance and discharge of her said agreement.” Without further pleadings or proceedings the Court, on the 25th of February, passed the following order, viz., “ It appearing to the Court that a copy of the within petition and order was'served on the defendant, Annie C. Schaefer, and no good cause to the contrary having been shown, although the time in said order allowed for showing cause has elapsed, it is ordered by the Court this 25th of February, 1879, that the within order be made absolute, and that a writ in the nature of a writ of habere facias possessionem issue in accordance with the prayer of the petition.” From which order this appeal is taken.

The main question presented by the record is, whether the writ of habere facias was providently granted. It is contended by the appellant that the answer per se, showed good cause to the contrary; that the case being submitted upon petition and answer, the latter was to be. taken as true, if not admitted as true, the appellee should have filed a replication, and thus allowed the appellant an opportunity of proving its truth. The appéllee insists that the answer, not denying the allegations of the petition, but setting up matter in avoidance, and not being under oath was in effect no answer; that in summary proceedings no replication is usual or necessary, and if the defendant was entitled to any remedy at all, it was hy original bill. They further contend that, assuming that the appellant was entitled under the agree ⁸⁷ ment to a reconveyance, still the writ should have been ordered, because the vendor of the land was entitled to the possession, until the terms of the agreement were complied with.

Finally, the agreement to recovery was violated by the