Waters v. Duvall

Dorsey, J., delivered the opinion of the court. The proceedings in equity which form a part of the record in this case, and were relied on for the purpose, present no obstacle to the motion of the appellant made on the return of the motion of the habere facias possessionem to Prince Georges county court. The relief prayed for in the bill of complaint is not identical with that sought under the motion. Nor if it had been, would it have formed any barrier to the free action of the county court on the application before it. A motion to quash a writ issued by a court of law is exclusively cognizable there, subject however to revision in an appellate tribunal. A. court of Chancery has no jurisdiction to try such a question. ’Tis true it may grant relief against any proceeding under such a writ, for which the court whence it issued could furnish no appropriate and adequate remedy; but it cannot quash the writ on account of informality, or any insufficiency of the grounds on which it may have issued. The appellant was no party to the suit from which the writ under consideration emanated. At the term whereat it was returnable, and not before, was he bound to object to its validity, or the legality of the proceeding under it. He had no earlier day in court, at which he could ask the court’s interposition in his behalf. Until the execution of the writ there had been no invasion of his rights to warrant his invoking the aid of the court as a court of law, non constat, that he was to be affected by it. The objection of the appellee therefore, that the motion to quash came too late, cannot be sustained. The only inquiries left for our examination then are; were the reasons assigned for the motion true ? are they sufficient ? That the writ as is alleged, irregularly issued, is apparent from the record, which shows that after the return of \hafi.fa. no notice was given to the tenants in possession, to show cause why an habere facias possessionem should not issue. That the want of such notice is fatal to [80] the writ was settled by this court, in the case of Knott vs. Llewellin, at June term, 1833. The truth of the charge of uncertainty in the writ is equally apparent. It commands the sheriff to give possession of “part of DuvaWs Pasture, containing one hundred and fifty acres, part of a tract called Tewkesbury, and part of Tewkesbury and Walker's Delight, containing one hundred and fifty acres, and part of a tract of land called Friendship, containing one hundred and eighty acres,” without giving any further description, or affording the means of obtaining it, by which the particular parts intended of said tracts of land could be identified or located. That a return with such a description of the land seized under a fi.fa. is void for uncertainty, has been adjudged in this court; and the reasons of that adjudication are conclusive as to the writ in question. The judgment of the county court is reversed, the writ of habere facias possessionem quashed, and a writ of restitution awarded the appellant.