Herzberg v. Warfield

Page, J., delivered the opinion of the Court. The appellant, Seligman Herzberg, became the purchaser at public auction of certain property situated in Baltimore City, sold by Edwin Warfield under a deed of trust for the benefit of creditors, made by Samuel Rosenthal and Charles Rosenthal. After the sale was reported to the Court, the appellant excepted to its ratification, because, prior to the said sale, but subsequently to the execution of the deed of trust, certain attachments, founded upon sworn allegations, that the Rosenthals had assigned and disposed of their property, or some portion thereof, with intent -to defraud their creditors, were issued, and laid in the hands of the trustee, and that the validity of the deed is thereby assailed; and, further, ⁴⁴⁸ because since the making of the deed, but before the sale, “numerous” judgments were obtained against the Rosenthals, and, “if said deed of trust be declared void," the appellant will be further involved in litigation with the judgment creditors. The parties, by their counsel, agree that the attachments referred to were “not laid per schedule, but were laid in the hands of Edwin Warfield." A paper signed by the attorneys for the attaching creditors, also appears in the record, in which, after setting forth the sale of the property mentioned in these proceedings, (but called in the paper the Hanover street property,) and that the purchaser has filed objections to the confirmation of the sale, upon the ground that said attachments might become a lien upon the property, it is stated, that the attaching creditors “exonerate and discharge" the property “from any lien or claim whatever on their part by reason of their said attachments;" but, it is also provided in said paper, that nothing contained therein “shall in anywise affect the attachment proceedings or the rights claimed by the attaching creditors in the funds and property other than the Hanover street property, in the hands of the said Edwin Warfield, garnishee.

" It is not alleged that these attachments are inchoate liens on the property, and we think it could not successfully be so contended. Had the attaching plaintiffs desired to acquire such liens, they might have laid the writs upon the land, and in that event the land must be described with sufficient certainty, so as to lay a legal foundation for a judgment of condemnation. Fitzhugh vs. Hellen, 3 H. & J., 206 . This was not done, and, as clearly appears from the paper signed by their attorneys, the attaching plaintiffs do not now set up any lien or claim on the land.

The writs were laid “in the hands" of Edwin Warfield, and ⁴⁴⁹ affect only the rights and credits, goods and chattels, of the Rosenthals in his hands at the time of laying of the attachments or any he may have, up to the time of the trial. Being so laid, these proceedings are against Mr. Warfield as garnishee only, and can by no possibility ripen into liens on the property mentioned in this case. But the appellant insists that, inasmuch as judgments in the attachments can be rendered only upon the Court finding the facts set out in the affidavits to be true, such judgments would be tantamount to a determination that the deed is void; and, in the event of such judgments being rendered, the purchaser, if compelled to complete his purchase, might be involved in litigation to protect his title, because, if the deed of trust be declared void, the legal title is still in Rosenthal, subject to the liens of judgments obtained against him. It is unquestionably true that a purchaser will not be required to accept