Green v. Western National Bank

Page, J., delivered the opinion of the Court. This is an appeal from an order of the Court below ratifying an audit distributing the proceeds of the sale of certain market stalls, in the Lexington and Hanover Markets in the city of Baltimore. The stalls were originally the property of Charles Brown, now deceased. In May, 1892, he borrowed $250 from the appellant, and to secure its payment pledged to him stalls Nos. 5 and 51^, in the Lexington Market.

There is no controversy over this transaction. On the 24th February, 1892, the Baltimore Butchers’ Mutual Protective Association loaned him $2,000 and on the 4th of April, 1894, the further sum of $500. To secure the payment of these two sums, amounting in the aggregate to $2,500, the association received a 'mortgage from Brown on all the stalls, and also the transfer of the licenses therefor on the books of the City Comptroller. At the same time, to comply with the rules of the association, Charles W. Brown, the son of Charles Brown, in his own name as trustee for Elenora Brown, his wife, subscribed for certain shares of stock of the association, and pledged them as additional security.for the loan.

In his lifetime Charles Brown paid no portion of this debt. Charles W.. Brown, however, kept the stock paid ²⁸⁸ up, according to the rules of the association. Brown states as the reason why the shares were subscribed for by him as trustee that the association required the borrower to become a member by subscribing for its stock, and his father not being “ in a condition ” to do so, he consented to take them as trustee for his wife, and pledge them for the debt of his father.

It was not insisted at the argument that the payments made by Brown on account of the stock was out of his wife’s money, as Brown in his answer had alleged. There is no proof in the case that would enable us to find that Mrs. Brown’s money was so used. Although at the requirement of the association, she joined in the receipt to it for the amount standing to the credit of her husband, trustee, there is nothing in the record to satisfy us that she had any interest in the matter whatever. In January, 1895, Charles Brown died and within a month thereafter, Charles W. Brown and Emil Budnitz qualified as the administrators of his estate.

On the 27th of November, 1895, the appellees recovered a judgment in the Baltimore City Court against Charles W. Brown for $1,209,80 with interest and costs, and on the same day execution by way of fieri facias was issued and reached the sheriffs hands two days later.. It is clear, that at the time of the issuing of this writ, the title to the stalls was in the administrators of Charles Brown, subject to the lien of George Green on stalls Nos. 5 and 5 in the Lexington Market, and the lien of the Butchers’ Association on all the stalls of the deceased in both markets. On the fourth day of December, 1895, the Orphans’ Court passed an order directing the administrators to make sale of the stalls. The report of the administrators to the Orphans’ Court fails to give the date of the sale made in pursuance of the order.

But Mr. Budnitz in his answer states that,, it was made, reported and ratified before the ninth day of December. He also testifies that Brown told him “ two or three days before the report of sale,” that Green was to be reported as purchaser, and acting on this he (Budnitz) prepared the report and ²⁸⁹ filed it. It was immediately ratified ; and “ the appointment was then made for all the parties in interest to meet at his office on the ninth of December.” That the sale was completed before that day is further borne out by a consideration of the purpose and plan Brown had in view. His purpose was to secure the title to himself; his plan, to have Green returned purchaser, so that the latter could hold the legal title until the loan was repaid ; and to effect all this, it was necessary when the time came for Green to advance the money and for the association to release the mortgage, that the title should be safely vested in Green.

How long before the ninth of December the sale was made, is not material; because if it was made at any time prior to that day, the lien of the appellant’s judgment fastened upon the property. Nor is it proper to enquire whether upon the facts proved, the title became vested in Charles W. Brown. The Circuit Court by its decree of the sixth of October, 1896, so determined, and with the correctness of that decision, it not having been appealed from, we are not now concerned. Phelps v. Stewart, 17 Md. 242 .

This appeal having been taken from an order distributing the proceeds of sale, the original decree authorizing the sale is not open to review by this Court. Newbold v. Schlens, 66 Md. 590 ; Porter v. Askew, 11 G. & J. 351 . Brown’s title having accrued prior to the return day of the writ, that is prior to the 9th day of December, if it be assumed that market stalls are such property as may be taken in execution, it is clear the appellees acquired a lien, subject to such prior liens as might exist. The fact that the Butchers’ Association held a mortgage, whereby the legal title was in it, with only an equity of redemption in Brown, could not avail to defeat the lien of the execution.

It could not be enforced at law, it is true, and because of that it is that the appellant had the right to seek the intervention of a Court of Equity in order that he may be paid his claim, after the prior lien has been discharged. “ It is an established legal principle, that ²⁹⁰ a debtor’s equitable estate in personal property cannot be seized and sold under a writ of fieri facias. The usual mode is, to issue a fi. fa., cause it to be levied or returned, thus showing that his remedy at law has failed ; by which acts of diligence a creditor acquires, in the eye of a Court of Equity, a priority of right from the time his execution was placed in the sheriff’s hands, anda Court of Equity will permit him to redeem the prior incumbrance or grant a decree for a sale.” Myers v. Amey, 21 Md. 305 . We are of opinion there is nothing in the nature of the right or estate acquired by the purchaser of market stalls to exempt them from the lien of an execution. Such right is “ in the nature of an easement in, not a title to, a freehold in the land ; * * it is limited in duration to the existence of the market and is to be understood as acquired subject to such changes and modifications in the market during its existence as the