Edward McMechen vs. Thomas Marman, 8 G. & J. 57

Doesey, Judge, delivered the opinion of the court. In shewing cause against the issuing of the hab. fac. poss. six grounds have been assigned by the appellee; the 5th and 6th of which appear to have been abandoned in the argument, and we are not aware of any thing in the record, upon which they could have been sustained. The third ground we deem wholly untenable.

Equitable estates being primarily liable to sale under a fieri facias, in the same manner that legal estates are, and there being nothing in the transaction, from which the court could impute fraudulent, or improper motives to any person concerned in the levy and sale that has been made, nor is there a shadow of proof of the fact alleged, “ that at the time of the rendition of said judgments, and at the time of issuing said fi.fa. and at the time of the levying of said fi. fa. the said Solomon Rank held, in fee simple in Fredericktown, real property, fully and amply sufficient to satisfy said judgments and fi, fa. without coming upon the property sold.” The insufficiency of the first and second causes assigned, has been settled by this court, in the case of Miller vs.

Allison and others, decided at the present term; in which it was held, that a judgment was a legal lien upon an equitable estate in lands, and bound them from its date, and not merely from the date of the fi.fa. The fourth ground alone, remains to be considered, viz; whether the purchaser of such an estate, at a sheriff’s sale, can obtain possession under the provisions of the act of assembly of 1825, ch. 103; the first

section of which, provides, “ that whenever any lands or tenements shall be sold by any sheriff, coroner, or elizor, by virtue of any process of execution from the Court of Appeals, court of Chancery or any county court; and the debtor or debtors named in said process, or any other person or persons, holding under such debtor or debtors by title subsequent to the date of the judgment or decree, shall be in the actual possession of the lands or tenements so sold, and shall fail or refuse to deliver possession of the same to the purchaser or purchasers thereof, it shall and may be lawful for the court to which such process shall be returnable, on the application of the purchaser or purchasers of the said land and tenements, his, her or their agent or attorney ; and on no good cause having been shown to the contrary, by the said debtor or debtors, his, her or their agent or attorney, or other person concerned, within the first four days of the term, next succeeding that to which the said process was returnable, to issue a writ, in the nature of a writ of habere facias possessionem, reciting therein, the proceedings which may have been had on said process, thereby commanding the said sheriff, coroner or elizor, as the case may be, to deliver possession of the said lands or tenements, to the purchaser or purchasers thereof.” This act of assembly is remedial in its character, and therefore should be liberally construed, in order to carry into full effect the designs of the legislature.

The evil intended to be remedied, was that debtors and those claiming under them, after a sale of their lands by the sheriff, held on to their possession, until ousted by the tedious process of ordinary judicial proceedings; thus against every principle of law and equity, without the ability of making ultimate indemnity for their wrong doings, depriving purchasers for years of all enjoyment of the lands they had honestly paid for; during which interval, it is more than probable, that those lands were greatly diminished in value, by a most severe and exhausting cultivation.

The necessary consequence of such a state of things must be the sacrifice of the interests of creditors, by depreciating the value of that fund, from which the payment of their debts is to be sought. The mischief complained of, operated with like severity on purchasers both of legal and equitable estates. The legislature therefore could have had no adequate motive for discriminating between them; for denying to one what was freely granted to the other.

The mischief to be removed was the same in both cases; the remedy provided equally applicable to each class of purchasers; not a word to be found in the law intimating any distinction between them. Upon what recognized principle of construction then, can we under the act of assembly withhold from the one, what is conceded the other. Believing that the county court erred, in refusing the writ applied for in this case, we reverse their judgment. Let a writ of habere facias possessionem issue from this court. JUDGMENT RE VERSED.