Fox v. Merfeld

Roberts, J., delivered the opinion of the Court. This appeal is taken from an order of the Court of Common Pleas of Baltimore City, passed in the case of Charles Coblens, an insolvent. The facts are substantially as follows: On the 22nd day of December, 1893, Charles Coblens filed his petition in the Court of Common Pleas to obtain the benefit of the insolvent laws of the State 01 Maryland. On the same day Louis Merfeld was appointed preliminary trustee, to whom the petitioner conveyed all of his property., in trust, for the benefit of his creditors.

At the time of filing his said petition, the petitioner was occupying, as tenant of Moses Fox, certain premises on Wilson street, in said city, and was then over four months in arrear for rent due and unpaid. The petitioner, at the time of his assignment, ⁸¹ was conducting on said premises a livery stable, and engaged in the business of boarding horses, and had in his possession a number of horses and carriages belonging to his customers, as well as certain property belonging to himself. The preliminary trustee, on the day of his appointment, filed his petition in said Court, calling the Court’s attention to the facts just stated, and to the further fact that Coblens was in arrear for unpaid rent, and requested an order of Court authorizing him to return to the respective owners their several horses and carriages and to remove from the demised premises all property belonging to the insolvent; which order the Court passed, authorizing the trustee to deliver the horses and carriages to the owners thereof, and directing the removal of the property of the insolvent estate and hold the same subject to the further order of the Court. On the day .following, Moses Fox, the owner of the premises on Wilson street, issued a distraint under which he seized all the property remaining on the premises at the time of levying the distress, which consisted of a horse, buggy and dayton.

Fox, on the same day, issued another distress under Art. 53, sec. 18 of Code, for the purpose of reaching the property which had been removed from said premises, and seized certain other property of the insolvent. Subsequently it was agreed between the parties to this controversy that the trustee in insolvency should sell all the property of the insolvent, subject to any lien which the Court might find Fox had acquired by virtue of his two distresses. The property was accordingly sold by the trustee, and the question was then argued and determined by the Court below that Fox had acquired no lien by the levy of the distresses, and that he only stood in the position of a general creditor. The question now to be decided is one free of serious difficulty.

In no material respect does it differ from the case of Buckey v. Snouffer, 10 Md. 149 ,