Kreuzer v. Cooney

Miller, J., delivered the opinion of the Court. The appellants brought replevin against the appellee for a certain quantity of type and other materials of a ⁵⁹⁰ printing office. The plaintiffs claimed under a hill of sale to them hy one Stewart, of “all and singular the types, forms, cases, composing stone, tables, hooks, and all other, the materials, utensils, machinery and chattels personal, now in the third story of the building situate in the City of Baltimore, at the northwest corner of Holliday street and Second street, and belonging to said Stewart.” This bill of sale was duly executed, acknowledged and recorded, as required hy the Code, Art. 24, secs. 39 and 46.— It appears from the testimony in the 'record and the granted instructions, that the plaintiff's permitted the materials covered hy this hill of sale to remain in the possession of Stewart, to be used hy him in printing a certain paper, and that after the execution of the same, Stewart purchased a quantity of type and other materials, similar to those above described and mingled and used the same therewith, and afterwards sold the whole including what he had purchased as well as what was covered hy the hill of sale, to the defendant for a valuable consideration, who was in possession of the same at the time the writ of replevin was served. Before noticing the several rulings brought up for review, it is proper to ascertain the legal rights and responsibilities of the parties upon the state of facts thus presented.

In the first place we think it quite clear the defendant acquired hy his purchase from Stewart, no right to, or interest in, the goods conveyed to the plaintiff's hy the hill of sale. By the recording of that instrument, he was affected with notice of the plaintiff's’ title, notwithstanding the grantor remained in possession of the property conveyed. By having the conveyance recorded within the time prescribed hy the statute, the title of the grantee, though the grantor still retains possession, is as perfect, and is protected as effectually as if the sale had been accompanied hy delivery. Clary vs. Frayer, 8 G. & J., 416 .

The defendant having acquired nothing more ⁵⁹¹ than Stewart could lawfully sell, must stand in the'place of his assignor or vendor, with respect to any claim or right against the plaintiffs, and must take the property he thus bought subject to every legal claim and right, which the plaintiffs had to it while in the hands of Stewart. These propositions are so elementary and familiar that nothing more is required than a mere statement of them. The case must, therefore, be considered as if if arose between the plaintiffs and Stewart, and so treating it, we think it plain the latter acquired no title to the property embraced in the bill of sale, by mingling with it property of the same kind which he afterwards purchased. So far as the doctrine of confusion of goods has any application here it operates in favor of the plaintiffs.

The foundation of that doctrine is protection of the innocent owner. By it the loss and inconvenience is always thrown upon the party who causes the confusion. We find nothing in the case before us tending to show, that the plaintiffs actually permitted or assented to the alleged intermixture, and nothing from which a presumption of such assent could arise. They simply permitted their grantor to remain in possession and use of the property, relying, as they had a right to do, upon the recorded deed to protect their title.

While so in possession Stewart held the goods as agent or bailee of the plaintiffs, and by his own act mingled them with others which he subsequently purchased. It would be very strange if by so doing he could acquire an absolute title to the goods thus left in his custody. Indeed the very reverse is what the authorities maintain. ■ Thus if one who has charge of another’s property so confounds it with his Own, that it cannot be distinguished, he must bear all tbe inconvenience arising out of the confusion; the law regards such an act as a breach of trust, and however extenuating the circumstances, he must lose his own property if he cannot identify and separate it from the mass. 2 8'holder’s Personal Property, 46. So it has been ⁵⁹² held that if a mortgagor of goods who is entrusted with their possession, intermix them purposely, or through want of proper care, with his own goods, so that they cannot he distinguished, and consign them for sale to a third person who sells them, the mortgagee is entitled to recover from the consignee the value of the whole.

Willard vs. Rice, et al., 11 Met., 493 . And in Hart vs. Tent Eyck, 2 Johns. Ch. Rep., 108 , it is said by Chancellor Kent, “if a party having charge of the property of others so confounds it with his own that the line of distinction cannot be traced, all the inconvenience of the confusion is thrown upon the party who produces it, and it is for him to distinguish his own property or to lose it.” The case of Dunning vs. Stearns, 9 Barb., 360 , and Brackenridge vs. Holland, 2 Blackf., 383 , announce the same doctrine.

Looking to-the facts disclosed by this record and to the character and description of property in dispute, the present case must, in our judgment, be governed by the law as thus stated, and the jury should have been instructed accordingly. But the case of Hamilton & Robinson vs. Rogers, 8 Md., 301 , has been referred to and relied on as establishing a different rule. A brief examination however of what our predecessors there decided on this subject, will show that that case is not in conflict with the authorities we have cited. That was an action of trespass brought by a mortgagee, against a judgment creditor - of the mortgagor, and the officer who levied the execution, for seizing and carrying away goods alleged to be covered by the mortgage.

The mortgage, which was of goods in a store, contained a clause attempting to convey all renewals and substitutions-of these goods, the object being to include not only the articles then in the store, but