Crocker v. Hopps

Fowler, J., delivered the opinion of the Court. On the 18th of February, 1892, Andrew J. Carll made a chattel mortgage of certain personal property, consisting of horses, carriages and harness, to the appellee William Hopps. Subsequently Carll became insolvent, and having applied for the benefit of the insolvent law, the appellant, Samuel J. Crocker, was duly appointed permanent trustee. Whereupon the appellee, claiming title under his chattel mortgage, took possession of the property sued for, subsequent, however, to the conveyance thereof to the appellant as insolvent trustee.

The appellee, as mortgagee, proceeded to sell not only the chattels specifically described in the mortgage, but certain others which are not therein mentioned, but which he contends should be subject to the mortgage to the same extent as if they had been so mentioned and described. This is an action of trover brought against the appellee by the appellant, as insolvent trustee, for the wrongful and illegal conversion of the goods sued for. The narr. alleges that the defendant converted to his own use three horses, three carriages, and one set of double harness, of great value, &c. Some criticism was made of this declaration, based on a want of particularity and definiteness in the description of the chattels sued for; but we think, although it is very genera] in its terms, yet it is in substantial compliance with the form prescribed by the Code, Art. 75,, sec. 23, sub-sec. 31, page 1103.

The defendant pleaded — First, the general issue; second, that under his chattel mortgage the chattels there ²⁶² in mentioned and described were bis property, and were traded and exchanged by the mortgagor for the chattels in the declaration mentioned, with the assent of the appellee and by his authority, and that default had been made in said mortgage, and that the appellee was, by the terms thereof, entitled to the chattels thereby secured, at the time he took the chattels sued for; and third, for defence on equitable grounds, that when said chattel mortgage was made it was agreed between the parties thereto that the mortgagor could sell or exchange the mortgaged chattels or any of them, and if so sold or exchanged, they should he replaced by others of like character and value, and that the latter should be subject to the mortgage lien in the same manner that the original chattels were; that the chattels sued for had been lawfully obtained by the mortgagor to replace those originally mortgaged, and that default was made before appellee seized the goods sued -for. To these pleas the appellee demurred. Strictly, this demurrer as appears from the record, applies to all the pleas, but it is evident it was only intended to apply to the second and third pleas, and not to the general issue plea of non cul. which is, of course, a good plea in trover. Counsel in their arguments limited the demurrer to the second and third pleas, and we shall so consider it.

The Court below overruled this demurrer, and at the close of the testimony the jury were instructed, at the request of the appellee, that under the pleading and evidence there was no legally sufficient evidence that the appellant was entitled to the goods sued for, or any of them, or to the possession of said goods, or any of them, and a verdict was directed for the defendant. From these rulings this appeal was taken, but as they both involve the same^question, the validity of the pleas, we shall proceed to consider them together. The second plea is based upon the theory that because the appellee ²⁶³ was in law, under his chattel mortgage, the owner of the chattels therein mentioned, he became entitled to the substituted or after-acquired chattels in virtue of the legal effect of such chattel mortgage. But that such was not the legal effect of such a mortgage has been held more than once by this Court.

It has been the settled law in Maryland since the case of Hamilton & Robinson vs. Rogers, 8 Md., 315 , that even if the mortgage contain a provision by which substituted or after-acquired chattels are sought to be subjected to the mortgage lien, no title to, or right of possession of, such after-acquired chattels will pass to the mortgagee. And in the case just cited, Lb G-rand, C. J., after a very able review of the authorities, comes to the conclusion that the mortgagee would have no right of action against a judgment creditor of the mortgagor, who took in execution some of the after-acquired chattels. And this, too, as we have seen, where the mortgagee was claiming under a mortgage which contained an express provision extending the