Burnett v. Bealmear

Roberts, J., delivered the opinion of the Court. William T. Burnett, brought an action of replevin against Samuel Bealmear and Charles H. Shipley. Bealmear avowed as landlord for a month’s rent due on the thirty-first day of December, eighteen hundred and ninety-two, and Shipley made cognizance, as bailiff, that he took the goods and chattels under lawful and regular distraint. The plaintiff pleaded two pleas, separately* to the avowry and to the cognizance; and the defences arose under demurrer to the first plea, and under issue to the second.

Both being decided against the plaintiff, he appealed to this Court. On the face of the pleadings the facts admitted by the demurrers are as follows: Bealmear leased certain premises in the City of Baltimore to Franke for five years from and after the first of May, eighteen hundred and ninety-two. About the twenty-ninth of December of the same year Franke made a deed to Burnett of all his property for the benefit of his creditors; and between that day and the thirty-first of December, Burnett removed from the rented premises the goods and chattels in question, knowing that a month’s rent was about to ³⁸ become due; on the said thirty-first of December a month’s rent became due, and thereupon Bealmear, the landlord, caused the goods and chattels to be seized under a distraint warrant for the payment of rent. The question was whether they were liable to be so seized.

The statute (Code, Article 53, section 18) gives the landlord the right to follow, seize and sell, under a distraint for rent, any property which has been removed from the rented premises, within sixty days prior or subsequent to the time when the rent became due, provided it has not been sold to a bona fide purchaser without notice, or taken in execution. It is well settled that a trustee for the benefit of creditors is not a bona \fide purchaser, and that he succeeds only to the rights of the assignor, and takes the property subject to all claims against him. Ratcliffe vs. Sangston, et al., 18 Md., 391 ; Tyler, Trustee vs. Abergh, 65 Md., 18 ; G. Ober & Sons’ Co. vs. Keating, et al., 77 Md., 100 . The removal was in pursuance of the authority given by the deed of trust executed by the tenant, and this deed could not give the assignee or trustee any greater rights than the tenant had.

In Gaither vs. Stockbridge, Receiver, 67 Md., 228 , a receiver appointed by a Court of equity took possession of the goods and sold them by order of the Court; his possession was lawful, and his sale under the order of the Court conveyed a good title as against the landlord and every body else. A purchaser under such circumstances occupies a very different position from a trustee for the benefit of creditors. The plaintiff’s second plea to the avowry and cognizance stated that the landlord did not cause regular distraint proceedings to be prepared, and the goods and chattels were not taken under a lawful and regular distraint. The distraint papers are set forth in the record; the account, the affidavit, the warrant, &c., &c.; and it was admitted that the month’s rent claimed was due, and remained unpaid.

It was contended ³⁹ in argument that the distraint proceedings were defective, because these words are written under the account: “Received payment, Samuel Bealmear.” The affidavit made hy Bealmear, attached to this account, states that this very rent is wholly due, and in arrear; the warrant to the bailiff, authorizing him to distrain, states that the month’s rent was due “as per annexed account,” being the account to which were appended the words “Received payment, Samuel Bealmear;” and finally, there was an ■agreement of counsel that this rent was due, and that it still remained