PLEADINGS, PRACTICE AND PROCESS AT LAW. 2399

dred dollars or imprisoned not more than sixty days or both fined and im-
prisoned in the discretion of said justice or court.

Averments of petition held to sufficiently comply with this section. Order over-
ruling demurrer not appealable; demurrer improper. Zeller v. Silverman, 143 Md.
342.

This section is remedial, and to be liberally construed. Object of this section.
The " good cause " to be shown under this section means an answer according to
the practice of court in which 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 respondent. Answer held insufficient. Schaefer v. Land & 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 writ.
The tenant against whom writ of habere has been issued under act of 1825, ch. 103
and who has been ejected by it, may upon its return move to quash it and show
cause why writ should not have issued. Waters v. Duvall, 6 G. & J. 76.

Where party in possession claims title paramount and adverse to purchaser and
to all of parties to 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 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 suit, possession will be delivered to purchaser
by proper process. Applegarth v. Russell, 25 Md. 319. And see Gowan v. Sumwalt,
1 G. & J. 513; Dorsey v. Campbell, 1 Bl. 364.

Proceedings held not to be under this section. The writ of habere facias posses-
sioneim is a judicial writ of a court of law, and is not appropriate for 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, proceedings
authorized by this section may be taken in cause in which decree was passed. Heirs
of original debtor, considered debtors. This section does not militate against right
of party in possession to defeat application for writ by showing sufficient cause.
Every application for writ under this section involves to some extent an inquiry
into nature and character of holding of party in possession; limited effect of decision
on such application. Nutwell v. Nutwell, 47 Md. 43 (note also dissenting opinion,
p. 50). And see Schaefer v. Land & Loan Co., 53 Md. 88.

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

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

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

This section entitles a purchaser to writ where a sale has been made under a
power contained in a mortgage. Where party in possession excepts to sale and his
exceptions are overruled, he cannot raise same objections upon an application for
writ of habere. The fact that sale was made by the assignee of mortgage does not
defeat purchaser's right to writ. Dill v. Satterfield, 34 Md. 53.

Proceedings held to be in conformity with this section. Sundry alleged irregulari-
ties connected with sale and sheriff's return, held to be no defense to an application
for writ of habere. An agreement between party in possession and a third party
made after seizure and sale does not defeat writ. Miller v. Wilson, 32 Md. 298.

This section operates in favor of the purchaser of an equitable estate, as well as
of a legal estate. McMechen v. Marman, 8 G. & J. 73.

Where pending application for writ of habere, purchaser of land dies, his right
to writ does not devolve upon his administrators. Turner v. Waters, 14 Md. 62.

Act of 1825, ch. 103, held applicable where lands were taken in execution prior
to its adoption, but sold thereafter. Clark v. Bealmear, 1 G. & J. 449.