Zeller v. Silverman

Briscoe, J., delivered the opinion of the Court. The appeal, in this case, is from an order of the Circuit Court of Baltimore City, passed on the 4th day of October, 1922, overruling the demurrer of the appellant to the petition of the appellee, for a writ of "habere facias possessionem3' against the appellant. The petition, upon which the proceedings are based, avers in substance: First; that on the first day of March, 1922, the petitioner became t lie purchaser of the mortgaged premises mentioned in the proceedings in the cause named therein, which were sold under a decree of the Circuit Court of Baltimore City, by Francis bL Buckley, trustee. Second; that the sale was duly reported to and finally ratified and confirmed by the Circuit Court of Baltimore City.

Third; that the appellant, assignee of the tenant of the defendants, the mortgagors named in the cause; continued, to remain upon the property, and are still in possession thereof, and refuses to give up the same. The prayer of the petition is, that an order may be passed requiring Rebecca Zeller, the assignee; to give and deliver up to the petitioner full possession of the mortgaged premises mentioned in the proceedings in the cause, and sold under the decree therein passed to the petitioner. On this petition, the 'Circuit Court of Baltimore City, on the 2nd day of August, 1922, passed an order that Rebecca Zeller, the appellant on this appeal, and the defendant below, show cause on or before the 18th day of August, 1922, why she should not be required to deliver at once possession of the property in the petition, to the purchaser thereof, pro ³⁴² vided., a copy of the order be served oil Rebecca Zeller on or before the 7th day of August, 1922. On the 16th of August, 1922, the appellant hied a demurrer to the petition, and alleging as a ground therefor, that the appellee had not alleged in his petition such a case as entitles him to any relief in a court of equity.

The question presented by the pleadings is a narrow one and is simply this, do the averments of the petition sufficiently meet the requirements of the statute, relating to applications, for writs of habere facias, and constitute the right of the petitioner to the relief sought by the petition, if supported by proof ? ' By section 93 of article 75 of the Oode, it is provided in substance that whenever any lands or tenements shall be sold by any officer named therein, or by any trustee! under the decree of any court of this State, * * * by any mortgagee under any power in any mortgage and the debtor named in such execution or decree, * * * shall be in actual possession of the lands and tenements sold and shall fail or refuse to deliver possession of the same to the purchaser thereof, the judge of the circuit court for the county in which the lands or tenements may be. situate, or if situate in the City of Baltimore the judge of the circuit court, or of the Superior Court of Baltimore City, shall on application in writing, to be verified by the affidavit of the purchaser, unless good cause to the contrary be shown by the party or parties in actual possession, within not less than fifteen days nor more than thirty days from the filing of such application, issue a writ in the nature of a writ of habere facias possessionem reciting therein the proceedings which may have been had in said process, thereby commanding the sheriff of the county to deliver the possession of lie lands or tenements to the purchaser thereof, etc. In Schaefer v. Amicable P. L. and L. Co., 53 Md. 83 , it was said, the evil intended to be remedied by similar acts of assembly was, that debtors and those claiming under them after a sale, “held on to their possession until ousted by the ³⁴³ tedious process of ordinary judicial proceedings, thus 'against every principle of law and equity without the ability of making' ultimate indemnity for