1678 PLEADINGS, PRACTICE AND PROCESS AT LAW. [ART. 75

such lands and tenements at the time of such sale to permit such person
to remain in possession for a limited period, the judge shall grant the
said writ if it appears in said application that the period limited by
such agreement between the purchaser and the person in possession
has expired, and should the party or parties so evicted by writ of habere
as aforesaid re-enter upon said property, or any part of the same, with-
out the consent of the purchaser, he or they shall be deemed guilty of
a misdemeanor, and upon conviction thereof either before a justice of
the peace or in the circuit court for .any county for the State, or the
criminal court of Baltimore city, he shall be fined not more than one
hundred dollars or imprisoned not more than sixty days or both fined
and imprisoned in the discretion of said justice or court.

This section is remedial, and to be liberally construed. Object of this sec-
tion. The "good cause" to be shown under this section means an answer
according to the practice of the court in which the proceedings are pending,
under oath if in equity; not only averments but evidence to sustain them
are called for. The burden of proof is on the respondent. Answer held Insuf-
ficient. Schaefer v. Land and Loan Co., 53 Md. 88. And see McMechen v.
Marman, 8 G. & J. 74.

A failure to give notice to show cause to the tenants in possession is fatal
to the writ. The tenant against whom the writ of habere has been issued
under the act of 1825, ch. 103, and who has been ejected by it, may upon its
return move to quash it and show cause why the writ should not have issued.
Waters v. Duvall, 6 G. & J. 76.

Where the party in possession claims title paramount and adverse to the
purchaser and to all of the parties to the suit under which the property was
sold, the writ should not be granted, the case being submitted on petition and
answer. Griffith v. Hammond. 45 Md. 89. And see Miller v. Wilson, 32
Md. 301.

When a purchaser under a decree has fully complied with the terms of
sale, and possession is withheld by a party to the suit or one claiming under
a party by title subsequent to the commencement of the suit, possession will
be delivered to the purchaser by proper process. Applegarth v. Russell, 25
Md. 319. And see Gowan v. Sumwalt, 1 G. & .T. 513; Dorsey v. Campbell, 1
Bl. 364.

Proceedings held not to be under this section. The writ of habere facias
possessionem is a judicial writ of a court of law, and is not appropriate for
the ordinary use of a court of equity. Morrill v. Gelston, 32 Md. 118.

Where a sale has been made under decree of a court of equity, the proceed-
ings authorized by this section may be taken in the cause in which the
decree was passed. Heirs of the original debtor, considered debtors. This
section does not mitigate against the right of the party in possession to
defeat the application for the writ by showing sufficient cause. Every appli-
cation for the writ under this section involves to some extent an inquiry into
the nature and character of the holding of the party in possession; limited
effect of the decision on such application. Nutwell v. Nutwell, 47 Md. 43
(note also, dissenting opinion, p. 50). And see Schaefer v. Land and Loan
Co., 53 Md. 88.

Ordinarily in summary proceedings under this section, the question of
title is not Involved or decided, the Inquiry being limited to the fact of pos-
session. Where a party holds property only in the character of trustee and
not in his own right, the purchaser is not entitled to the writ of habere.
Cooke v. Brice, 20 Md. 400.

Although a defendant in a judgment at law fails to appear and move to
quash the writ, he may still keep possession of property sold under execu-
tion, and upon proceedings under the act of 1825, ch. 103, defend at law on
the gronud that the description of the land in the sheriff's return was void
for uncertainty. Acquiescence. Nelson v. Turner, 2 Md. Ch. 77.

For a case upholding a writ of habere irregularly issued, where it had been
executed and the purchaser was entitled to possession, see Meloy v. Squires,
42 Md. 378.