PLEADINGS, PRACTICE AND PROCESS AT LAW 2841

in cases where the purchaser has entered into an agreement with the person
in actual possession of 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, without the consent of the purchaser, he or they shall be deemed
guilty of a misdemeanor, and upon conviction thereof either before a jus-
tice 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 hun-
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. An-
swer 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-
sionem 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.