23 Md. 288 | Md. | 1865
delivered the opinion of this Court :
The facts, upon which the questions in this case depend, are these: An execution, issued on a judgment obtained by Levering, one of the appellees, against Daniel C. Bruce, was levied on certain chattels and household stuff previously conveyed or mortgaged by him to the appellants, who thereupon filed their bill, and obtained an injunction restraining Levering from selling this property under his execution. Levering answered this bill, denying that the appellants had shown a proper case for an injunction, and insisting that he was entitled to a sale of the property, without, however/alleging that his debtor had no other assets, or that the property levied on was more than sufficient to satisfy the appellant’s just claims; and then prayed the Court to decree a sale, and dissolve the injunction. This response to the bill was followed by a motion to dissolve, and an agreement, that certain exhibits, filed by the appellants, to show the consideration for which the conveyance from Bruce to them was executed, should be read in evidence upon the hearing thereof,but not at the final hearing, except proved in the regular way. ’ ’ This motion appears
The appellee insists that, by levying his execution on this property, he became entitled to a decree for its sale. The first material objection to this proposition, is founded on the want of the averments necessary to authorize such a decree. The appellee has no where alleged that his debtor has no other property/nor has he alleged that the property is more than sufficient to satisfy the appellants’ claims; and without these allegations the Court could not assume that a sale by decree would be of any advantage, or serve any useful purpose. It is true that a judgment creditor, who has issued and levied his execution on personal property previously mortgaged, may proceed in equity to redeem the mortgage, but it does not follow that the creditor would, in all cases, acquire such an interest as would authorize a decree to sell. Here the appellee simply asserts that he has levied his execution, and without alleging that a sale would be of any service or advantage to him, claims a decree for a sale as a matter of right; his theory being that his levy entitled him to a sale of the property, without regard to the question as to whether it was or was not more than sufficient to satisfy the prior claims of the appellants. The legal title being in them, his remedy was necessarily by a proceeding in equity; and to show.such an interest as would give him a standing in equity, it was necessary to aver that his debtor had no other property, and that it was more than sufficient to pay the appellants’ debt; for on that ground, alone, should a sale have been decreed.
The lien, acquired by the levy of the execution, gave him a right to proceed in a Court of Equity, but for a single
If his debtor had other property sufficient to satisfy his judgment, it is clear that this proceeding was unnecessary, if not mischievous; and if the property levied on was not sufficient to satisfy the mortgage debt, it is equally clear that he acquired no such interest as would'authorize the Court to decree a sale in his behalf. But the case, as presented by the record, stands on a much stronger ground. The parties, without regarding the substantial defects in the formal part of the proceedings, offered evidence upon which the right of the appellee to a sale of the property might have been finally adjudicated. The proof, as we have seen, shows conclusively that the mortgaged property was not sufficient to satisfy the mortgage debt, and we think the Court below should have so determined. If the evidence had been such as to have left the Court in doubt in regard to the value of the property, or amount- of the debt it was mortgaged to secure, a sale might have been decreed, as the only practicable way of determining whether it was sufficient to satisfy any part of the appellee’s claim. But that was not the case here, for it clearly appears that the property levied on was wholly inadequate to pay the prior/ mortgage debt, and, as a matter of course, that the appel-
The injunction was properly continued, but we think there was error in directing a sale, and to that extent will reverse the decree of the Court below, with costs to the appellants.
Decree affirmed in 'part, and in part reversed.