Rotering v. Jamison

Oeeutt, J., delivered the opinion of the Court. Annan, Horner & Company, on April 28, 1917, obtained in the Circuit Court for Frederick County, Maryland, a judgment against Lou II. Callahan and C. F. Rotering, individually and as partners, for $4,000. On September 23rd, 1920, they obtained a judgment against Callahan alone for $1,406.88 in the same court.

Prior to May 19th, 1921, a writ of fieri facias, returned on that day and issued on the last named judgment, was executed by the sheriff of Frederick County, who sold under it certain land in the town of Emmitsburg owned by Callahan to Brooke I. Jamison for $2,400. Part of the purchase price was applied to the payment of the judgment against Callahan alone, and the balance paid on account of the judgment against Callahan and Rotering. At the September Term, 1922, of the Circuit Court for Frederick County, a writ of fieri facias was issued at the order of the plaintiff on the judgment against both Callahan and Rotering, which at that time had been assigned to the Farmers and Mechanics National Bank, and the sheriff in executing that writ again levied on the same property which he had sold under the first execution to Jamison. Jamison thereupon filed in the 'Circuit Court for Frederick ²⁹⁸ County a bill in which he set out the facts stated above, and further .alleged that when he bought the property at the sheriff’s sale a representative of the plaintiff, a member of the firm, was present, and that he, acting for them, had waived the lien of the former judgment against the land and authorized and ratified a sale of it to the appellee free and clear of the prior lien of that judgment, and he, Jamison, accordingly asked that the further execution of that judgment against the property sold to him by the sheriff of Frederick County under the former judgment be enjoined.

The hill was filed against the several persons composing the firm of Annan, Horner & Company, the Farmers and Mechanics National Bank, and James A. Jones, sheriff of Frederick County. The bank filed a combined answer and demurrer to the bill, while the other defendants answered it. The pleadings presented a single issue of fact, to wit, whether any member or representative of the firm of Annan, Horner & Co., acting for it, by his words or conduct waived the lien of the first judgment against Callahan’s property at the time it was being, sold under their second judgment. Without recapitulating the testimony taken in connection with that issue, it is sufficient to say that it showed that no announcement was made, either in the advertisement of the sale or at the sale itself, that the property would be sold subject to the lien of an older judgment, but that at the sale, when a question was raised about the dower rights of Mrs. Callahan in the property, the auctioneer, with the authority and in the presence of Annan Horner, a member of the plaintiff’s firm, who attended the sale, announced that a “good, clear title” to the property would be given, and that the sale was made after that announcement.

Upon that testimony the trial court signed a decree perpetually enjoining the plaintiff's from enforcing their judgment of April 28th, 1917, against the property sold to Jamison. That decree was so far satisfactory to the judgment creditor that it entered no appeal from it, but, nearly two months after it had been filed, the appellants, who up to that time were not parties to the case, filed a petition in the case which contained these statements: ²⁹⁹ “First: That your petitioners have qualified as such trustees in said No. 10642 Equity, and have in pursuance to an order of your honorable court sold the personal property amounting to about eleven ($11,-000) thousand dollars and have distributed the same to the creditors of the said C. O. Rotering. “Second: That there remain in the hands of your trustees several pieces of real estate belonging to Mr. Rotering in value amounting to several thousand dollars, which it was the intention of your petitioners to sell and distribute , the proceeds thereof to the creditors, but before the same was done your honorable court handed down an opinion in the above entitled cause, the effect of which