161 Md. 508 | Md. | 1932
delivered the opinion of the Court.
The First National Bank of Baltimore was the landlord of the First National Company, a corporation of the State of Delaware^ and the tenant was in possession of a portion of the eighteenth floor of the landlord’s bank and office building under a demise for a term of one year, which began on July 1st, 1929, at the rent of $5,200, payable in advance in equal monthly installments of $433.34 on the first day of every month of the year. On the 18th of February, 1930, the Corporation Commission of the State of North Carolina, a corporation of that state, procured an attachment to be issued out of the Superior Court of Baltimore City against the First National Company as a nonresident debtor corporation on an alleged debt of $2,060, and gave the sheriff written instructions to seize all furniture or other chattels of the alleged debtor in its office in the landlord’s building, and to schedule and appraise, and then to leave these articles, “in the possession of their present custodian.” Hodgson v. Southern Bldg. etc. Assn., 91 Md. 439, 46 A. 971. The sheriff complied with these directions on February 20th, 1930, and, accordingly, made his return of the levy of the movable office furniture of the company, and concluded his return with the certification that “goods levied upon, left where found at risk of plaintiff, as per order of the plaintiff’s attorney.”
While these latter events were happening, creditors of the debtor began on May 26th, 1930, proceedings in equity against the debtor for a receivership of its affairs, and on July 10th, 1930, the chancellor appointed receivers, and by July 16th, 1930, the parties in interest had agreed that the goods and chattels in controversy should be sold by the receivers and the proceeds of sale distributed in accordance
The decision in the pending case depends upon whether or not the chattels were in the custody of the law at the time the landlord attempted distraint.
When the sheriff or other officer seizes goods and chattels under a writ of fieri facias (1), or under a writ of attachment (2), he acquires a special or qualified .property in the goods and chattels by virtue of which they are in the custody of law, and therefore are not subject to be seized and dis-trained for rent in arrears (3). Should there be rent in arrear at the time of the seizure, but no distraint, the execution creditor, who has caused to be seized the goods and chattels of a tenant upon the demised premises, must pay the rent so in arrear for such premises for a period not in excess of one year, before the goods and chattels may be removed by the officer; or, if not removed, but sold on the premises, the officer must pay the rent due out of the proceeds of the sale in his hands. The provision for the payment of the rent in arrear was made by the Statute of 8 Anne, ch. 14, to relieve, to this extent, the hardship frequently resulting to the landlord by an enforcement of the common law principle of custodia legis in favor of the claim of an execution creditor who had seized the goods and chattels of the tenant on the premises before the landlord had distrained for the rent in arrear (4). Although an attachment on warrant is not an execution within the meaning of the Statute of 8 Anne, ch. 14, sec. 1, yet, by analogy, it is held that the claim of the attachment creditor must yield precedence to the rent in arrear for a similar period, so that this rent, if properly
(1) State v. Page, 1 H. & J. 475, 477; Williamson v. Wilson, 1 Bland, 435; Jones v. Jones, 1 Bland, 449. (2) Thomson v. Baltimore & Susquehanna Steam Co., 33 Md. 312, 319; Ginsberg v. Pohl, 35 Md. 505, 507, 508; Corner v. Mackintosh, 48 Md. 374, 388. (3) Cromwell et al. v. Owings, 7 H. & J. 55, 58; Thomson v. Baltimore & Susquehanna Steam Co., 33 Md. 312, 319; Fox v. Merfeld, 81 Md. 80, 82, 31 A. 583; Baltimore, C. & A. Ry. Co. v. H. Klaff & Co., 103 Md. 357, 361, 63 A. 360; Mears v. Perine, 156 Md. 56, 143 A. 591. (4) Washington v. Williamson, 23 Md. 244, 251; Calvert Bldg. etc. Co. v. Winakur, 154 Md. 519, 527-532, 141 A. 355; Mears v. Perine, 156 Md. 56, 57-64, 143 A. 591. (5) Fisher v. Johnson, 6 Gill, 354, 359-362; Harden v. Moores, 7 H. & J. 4; Thomson v. Baltimore & Susquehanna Steam Co., 33 Md. 312, 316-319; Wanamaker v. Bowes, 36 Md. 42, 59; Gumbel v. Pitkin, 124 U. S. 131, 8 S. Ct. 379, 31 L. Ed. 374, 378.
In the appeal of Washington v. Williamson, 23 Md. 244, the report shows that two executions were placed in the hands of the sheriff, and-levies were made upon personal property in the possession of the judgment debtor during the month of June, 1860. The articles were scheduled but left by the sheriff, where taken, in the warehouse of the judgment debtor, and so remained until sold on the premises by the sheriff pursuant to the executions. After these levies, had been made, the landlord of the judgment debtor notified the sheriff that, on July 1st, the tenant was in arrears for six monthly installments of rent for the warehouse in which the chattels were found, and which was demised to the debtor. The nisi prius court- ordered the sheriff to pay out of the proceeds of the sale, made after July 1st, six installments of rent, which would satisfy the rent then in arrears to July 1st, although but five installments of rent to June 1st were due when the executions were issued. The proceeds of the execution in
While the case last cited expressly holds that the goods and chattels seized by the sheriff remain in the custody of the law, although the sheriff does not remove them from the premises, but leaves them in the possession of the owner of the articles, yet the instance is one of a seizure under an execution. It is not perceived how, on principle, a taking of property by the sheriff pursuant to a writ of attachment does not likewise place the goods and chattels in custodia legis, since the taking is in rem and dedicates the personalty seized to the exigency of the particular writ to the exclusion of any conflicting process at law. The precise point is so adjudicated. In Thomson v. Baltimore & Susquehanna Steam Co., 33 Md. 312, this court said, “after the seizure of goods under an attachment and before sale, they are in the custody of the law, and, consequently, cannot be distrained, because the party distraining cannot legally take them into his own possession.” Page 319 of 33 Md. Again, in Ginsberg & Oppenheim v. Pohl, 35 Md. 505, the court determined that, so long as the attachment lien exists, the chattels seized thereunder are in the custody of the law, and although they cannot be taken by another officer under a subsequent execution or attachment, yet, if the latter be directed to the same officer, he may schedule the property already in his possession and hold the surplus after satisfying the prior executions or attachments. In making the levy under the subsequent writs, however, he cannot be sued as trespasser, because the goods and
While the Maryland doctrine is not universally accepted, and there are weighty reasons why a levy of the writ should be accompanied or immediately followed by an interruption of the defendant’s apparent ownership, and the time when the custody of law begins should be manifested by the relinquishment of the defendant’s possession and by the assumption of exclusive possession by the officers of the law, yet there are countervailing practical considerations which, by tempering the harshness and lessening the injury of an immediate and peremptory removal of the goods and, nevertheless, warning the defendant of the imminent necessity to discharge his obligation, are of such public importance as to cause Mr. Freeman to write: “But in most states, it is clear that, if the levy is otherwise perfect, it will not be invalidated by leaving the property with the defendant. The officer need not in any case take charge of the property in person. He may act through the agency of deputies or keepers, being in either event responsible for their conduct. If he chooses to repose special confidence in the defendant, he may appoint him as keeper, and may leave the property in his custody. If the defendant abuses his trust by destroying the property, or by otherwise placing it beyond the power of the officer, the latter is responsible to the plaintiff in
If, however, it should appear that the levy was not made in good faith, nor for the purpose of its enforcement, as if the plaintiff’s object was merely to obtain some security, or to prevent some other levy being made in advance of his own, or to hinder or delay other creditors of the debtor, then the levy under the writ of attachment must be adjudged fraudulent and void. Here the most incriminating circumstance is that, in the instructions given to the sheriff, the goods and chattels, after seizure, were to be left “in the possession of their present custodian.” The articles referred to were the office furniture of the defendant, and it was not contemplated by the plaintiff that these goods and chattels were to be removed or sold by the debtor, nor that the defendant could continue to exercise the full powers of ownership, but the debtor’s use of this property was merely an incident of the custody, whose primary purpose was to save costs and expense, and diminish the injury and risk of damages because of the levy, which, in an attachment on warrant against a
Decree affirmed, with costs to the appellee.