Fidelity & Deposit Co. v. Haines

Briscoe, J., delivered the opinion of the Court. The appellees sued the appellant, a corporation in this State, in an action of debt, as surety on a replevin hond. The following facts arise on the pleadings: On the 1st of December, 1889, the Bolton Mines Company, of Baltimore City, sold a certain lot of fertilizers or phosphates to the Waring Manufacturing Company, of Cecil County, Mainland. The goods were delivered, and a note dated, the 15th of March, 1890, was executed and delivered for the contract price.

Afterwards, on the ⁴⁵⁷ 23rd of May, 1890, the latter company, being financially embarrassed, made a deed of trust to the appellees for the benefit of creditors. This deed of trust was recorded in Cecil County, the place of domicile of the corporation, and the bond of the assignees filed on May 30th, 1890, in the same county. On the 9th of June following, the Bolton Mines Company replevied the identical g’oods of the appellees, and took possession of them. The replevin suit was not prosecuted with effect, or the property returned, but was dismissed by order of the plaintiff in the replevin suit.

And this action was brought against the appellant, as surety on the replevin bond. The questions to be passed upon by us arise upon demurrers and exceptions to the various prayers. It is contended upon the part of the appellant that, when the fertilizers were replevied, on the 9th of June, 1890, the appellees had no title to them, because while the deed of trust was recorded in Baltimore City on the 5th of June, 1890, the assignees’ bond was not filed there until the 11th of June, two days after the goods had been replevied. This contention can be disposed of by a single reference.

In the case of Stiefel and Cohen vs. Barton, Garnishee, 73 Md., 411 , we passed upon the identical question, and in construing the 205th section of Article 16 of the Code, which provides “that every trustee to whom any estate, real, personal or mixed shall be conveyed for the benefit of creditors,” * * * there said, that “a deed conveying real property for the benefit of creditors must bo recorded in the county or counties, or in the City of Baltimore, in which the land lies; and, if it conveys personal property, it must be recorded in the county or city in which the grantor resides.” We said also that, as the property in dispute in Barton’s Case was personal property, the deed ought to have ⁴⁵⁸ been recorded in the county where the grantor resided, and the bond of the trustee ought to have been filed with the clerk of that county for his approval. And until the deed was so recorded and the bond of the trustee so filed, no title to the property could vest in the trustee. There can be no question, then, that as the deed of trust, in the case now under consideration, was recorded and the bond of the trustees was approved and filed in Cecil County, the place of the domicile of the grantor prior to the issuing of the writ of replevin, and in the absence of fraud in the sale, which charge is abandoned by the appellant, the legal title to the personal property of the Waring Manufacturing Company passed to the trustees under the deed of assignment, and the taking of this property was a wrongful and unlawful interference with the possession of the assignees. The subsequent recording of the deed and filing of the bond, in Baltimore City, was manifestly for the purpose of passing title to the real estate, and could in nowise affect the title to the personal estate.

The demurrer therefore to the defendant’s third plea,