Caltrider v. Caples

³⁹³ Sloan, J., delivered the opinion of the Court. On October 8th, 1927, the appellant George B. Caltrider purchased from his brother, Wilmer A. Caltrider, a lot of ground at Reisterstown in Baltimore County for $2,500, on account of which he paid that day $500. The deed for the lot was not executed until February 6th, 1928, and recorded in the clerk’s office of Baltimore county a week later, Eebruary 13th, 1928. In the meantime., on January 27th,' 1928, Charles L. Capíes, appellee, obtained a judgment in the Circuit Court for Baltimore County against Walter A. Caltrider and his wife for $1,773.40.

It does not certainly appear from the record when execution was issued on the judgment by Capíes, but it does appear that, subsequent to the delivery of the deed to George B. Caltrider, the sheriff of Baltimore county advertised the lot for sale on the 20th day of August, 1929. On August 8th, 1929, George B. Caltrider and Yennia Caltrider, his wife, filed their bill, reciting all the aforegoing facts, praying that Charles L. Capíes and Samuel A. Brooks, sheriff, be enjoined from enforcing the judgment of Capíes against Wilmer A. Caltrider and wife, and selling the lot so conveyed to George B. Caltrider. The writ of injunction was issued as prayed, and, after answers were filed by the appellees, testimony was heard, and thereupon a decree was passed dissolving the injunction and dismissing the hill, from which decree this appeal is taken. The appellants contend that the sale 'by Wilmer A. Caltrider to his. brother, George B. Caltrider, having been made before the judgment of Capíes was obtained, the judgment is not a lien on the property, even though the deed had not then been executed and delivered.

The appellees contend that the judgment is a lien on the lot, subject only to the purchase money already paid on account, and that, after the entry of judgment, the purchaser, George B. Caltrider, paid any further sums of money at his peril until and unless the judgment was satisfied. The debt from Wilmer A. Caltrider to Capíes appears to ³⁹⁴ have been incurred before the purchase by George B. Caltrider, and the judgment procured afterwards. The only witness testifying in the case was the appellant, George B. Oaltrider, who said: “I told Mr. Capíes I purchased the property and being good friends we talked the thing’ over. I did not know what my brother owed him, but I knew he was involved to some extent.” That was “previous to the time the thing had gone through,” and before the judgment was obtained.

What rights the judgment creditor has are derived solely from statute. “At common law a creditor had no remedy against the lands of his debtor for the satisfaction of his claim, but by 13 Edw. I, c. 18, it was provided that when a debt is recorded or damages awarded it shall be thenceforth ‘in the election’ of a creditor to have a writ of fieri facias against the goods and chattels of the debtor, or else a writ that the sheriff deliver to him all the chattels of the debtor and one-half of his land.” 3 Tiffany on Beal Property, 2775; Coombs v. Jordan, 3 Bland, 284 , 22 Am. Dec. 236 . “Judgments create liens only because the land is made liable by statute to be seized and sold on execution.” Dyson v. Simmons, 48 Md. 207, 215 ; Valentine v. Seiss, 79 Md. 187 , 28 A. 892 ; Code, art. 26, secs. 14-20; art. 83, sec. 1. The appellee’s reliance in the instant case seems to be based on the priority in time of the entry of his judgment over the execution and recording of the appellant’s deed, and construes a quotation from Union Trust Co. v. Biggs, 153 Md. 56 , 137 A. 509, 512 , to the effect that “the real and not the apparent rights of the judgment debtor in the property measure the rights of the judgment creditor,” as supporting the contention that the judgment is a lien on the land, subject only to an equitable lien in favor of the appellant for the amount ($500) paid on account of the purchase money.

That, however, is ascribing a meaning different from that expressed by the quotation, which, together with the case from which it is taken, supports the rule applied to the facts of this record. The apparent right, according to ³⁹⁵ the record evidence, would give the judgment precedence over the deed, whereas the real right was in a contract of sale whereby the legal title was still in the judgment debtor who held as trustee for his purchaser, the appellant. Hampson v. Edelen, 2 Har. & J. 64 . 3 Am. Dec. 530 .

The appellee’s contention was that of the appellant in Knell v. Green St. Bldg. Ass’n., 34 Md. 67 . The appellee held a mortgage, which had been executed before the appellant’s judgment, for money loaned at the time, but not recorded until two months after the judgment was entered. The appellant contended “that as against a judgment creditor without actual notice of the mortgage, that instrument operates only from the time it is recorded.” In support of this position we have been referred to Code of 1860, art. 24, sec. 15 (now Code, art. 21, sec. 16).

That section relates only to the case “when there are two or more deeds conveying the same! lands or chattels real,” and provides that “the deed or deeds first recorded according to law shall be preferred if made bona fide and upon good and valuable consideration,” and the section by its terms applies to all other deeds or conveyances to the validity of which recording is necessary. If the sixteenth section had been designed to protect the rights of a. judgment creditor, apt words for that purpose would have been employed. But he is neither in fact nor in law a bona fide purchaser, as has been often decided. “The requirement of record has almost invariably been regarded as intended for the protection of subsequent purchasers only, so that the