Henry B. Myers Co. v. Annapolis Banking & Trust Co.

Shehan, J., delivered the opinion of the Court. The question here presented relates to an alleged preferential claim asserted by the Annapolis Banking & Trust Company in the assets of the Arundel Supply Company. This is contested by the Henry B. Myers Company, the appellant, which recovered two judgments in the Circuit Court for Anne Arundel County on the 1st day of Febru ¹⁹⁹ ary, 1933, and on the 15th day of November, 1933, had a fieri facias issued on each of these judgments and placed in the hands of the sheriff on November 16th, 1933, with the instruction,, “Do not make levy, hold,” in consequence of which no levy was ever made under these writs. Walter H. Myers, the president and general manager of the appellant corporation, authorized his counsel to give this order.

In his testimony he stated: “We had always been very friendly with the Arundel Supply Company and I did not want to see them put out of business any sooner than possible, and when we issued the fi. fa. on that, I asked Mr. Childs, if possible, to hold that in the hands of the sheriff for at least a short while to see if any other creditor would come up and try to issue a fi. fa. on it, and Mr. Childs told me yes, as long as it did not go past that term of court, the present term of court; and I asked him then to hold it unless somebody else came up with a fi. fa., and he assured me if anybody else did issue one that the first or prior one the sheriff had in his hands would be the first one issued on.” The witness further stated that he heard the instructions given to the sheriff. In pursuance of these directions the writs were indorsed, “hold,” and placed in the files at the sheriff’s office, and there they remained without further instructions. The Annapolis Banking & Trust Company recovered a judgment against the Arundel Supply Company dated March 16th, 1933, and on December 7th, 1933, a fieri facias was issued thereon, upon which a levy was made on the personal property of this company on December 11th, 1933. On January 5th, 1934, the Arundel Supply Company executed a deed of trust for the benefit of its creditors and the trustee took possession of all the property of the company, including the personal property so levied upon.

In the administration of the trust estate this property was sold, and in the distribution of the proceeds of sale the claim of the Annapolis Banking & Trust Company was allowed as a preference over that of the Henry B. ²⁰⁰ Myers Company, and to this allowance and preference the Henry B. Myers Company filed exceptions. These judgment creditors entered into the following agreement: “That in presenting this matter for determination by the court on these exceptions, whatever lien or liens may have accrued under either of the judgments involved in these exceptions, namely, the judgments of The Henry B. Myers Company and the Annapolis Banking & Trust Company, shall be preserved and considered applicable to the funds in the hands of the Trustees, and that said funds shall be distributed accordingly, in the order of the priority of said liens as the court may determine.” Thus were the respective rights and priorities of these two judgment creditors asserted or impressed upon the trust funds arising from the