Burton v. Jennings

Adkins, J., delivered the opinion of the Court. The appellee sued the appellant, who was formerly sheriff of Baltimore County, in an action of trover, the cause of action being the sale by the defendant while sheriff of an automobile of one Clarkin, on which plaintiff had a chattel mortgage, under a writ of fieri facias on a judgment against Clarkin, obtained in Baltimore City, subsequent to the recording of plaintiff’s mortgage. The mortgage was duly recorded in Howard County, where the mortgagor resided, and in Baltimore City, where he was engaged in business. The levy was made and the automobile seized in Baltimore County as Clarkin was passing through.

The mortgagor was in default, and plaintiff was entitled to possession of the car. The mortgage was not recorded in Baltimore County but the sheriff had actual notice of its existence and that it was recorded where the law required it to be recorded; and he was warned not to make the sale. He suggested that plaintiff file a claimant’s petition and have his rights determined by the court. On his failure to do so-, defendant offered and sold the car at public auction. .

This appeal is from a judgment in favor of plaintiff.. There are three exceptions to rulings on evidence and three to rulings on the prayers. The first exception was to the admission in evidence of the chattel mortgage, the objection being that it was not proper evidence, since it could not serve as constructive notice to the defendant, and if valid would not have been affected by the seizure and sale made by the sheriff. We find no error in this ruling.

The mortgage was. properly recorded, and the sheriff, having been told not only of that fact, but where it was recorded, was charged with actual notice of its existence. The' effect of the sale upon ²⁵⁷ plaintiff’s rights will be considered later. The other rulings on evidence; whether right or wrong, were not prejudicial, as the facts involved were otherwise fully proved. And we find no prejudicial error in the rulings on the prayers.

Appellant’s points are four in number, lie contends: 1. That plaintiff was not entitled to possession and therefore the action of trover did not lie. We find that plaintiff was entitled to possession. By the terms of the mortgage the mortgagor agreed to surrender possession to the mortgagee on default.

The mortgage was in default. A demand by the mortgagor was unnecessary in the circumstances of this case, as a preliminary to the right of possession by the mortgagee, as on the seizure of the property by the sheriff it was no longer possible for the mortgagor to' comply with such a demand, and it would therefore have been ineffectual. In such circumstances the warning given to the sheriff was sufficient. Bonaparte v. Clagett, 78 Md. 87 . 2.

That the chattel mortgage was not a lien on the property while in Baltimore County, and that the recording' in other counties did not give him constructive notice. But we hold that, as he had actual notice, he was bound to act on it, and if he had he. would have found that the mortgage was properly recorded, and that plaintiff was entitled to possession. 3. That the sheriff should not be held responsible in trover for damages sustained by the holder of a chattel mortgage1, who; having knowledge of the levy, allows the sale to proceed without taking some legal steps tO1 prevent the sheriff from “going ahead with his duty.” The fallacy of this contention is involved in the idea that the sheriff was “going ahead with his duty”; and that grows out of confusing the act of a sheriff who, under a writ directing him to take any property he may find belonging to a judgment debtor, takes property belonging to some one else, with his act in selling property under order of court which has been condemned in an attachment proceeding, as in Ranahan v. O’Neale, 6 G. & J. 298 , and Trieber v. Blocher, 10 Md. 14 . The distinc ²⁵⁸ tion.between the two acts is referred to in Thompson v. Baltimore & Susquehanna Steamship Co., 33 Md. 312, 318 .

It is