3 Md. 463 | Md. | 1853
delivered the opinion of this court.
The appellants filed their bill in this case on the 19th of June 1851, praying a decree for the sale of certain real estate for the payment of a debt due them by T. Samrnon, under a mortgage executed by him, on the 17th of September 1850; and likewise praying an injunction to restrain G. A. Thurston, as trustee of G. S. Greene, an insolvent petitioner, from sell: ing the property, or intermeddling therewith in any manner.
The property was originally purchased by G. S. Greene, of Wm. Chisholm, executor of Mary Ann O’Neill, and he gave his notes to secure a portion of the purchase money. On these notes Chisholm obtained judgments against Greene in 1843, and issued writs of fien facias upon them in 1844, which were levied on the real estate in controversy. The sheriff returned the writs as levied and on hand for want of buyers. On these fi. fas. writs of venditioni exponas were issued, on the 25th of February 1847, and on the 5th of May following the property was sold under these writs to Thomas Samrnon, by N. Bruce, as sheriff.
On the 14th of Jánuary 1847, George S. Greene became a petitioner for the benefit of the insolvent laws, and G. A. Thurston was appointed and qualified as his trustee. The insolvent papers were returned in the usual manner and filed by the clerk, on the 24th of January 1847.
The injunction was granted in the first instance; and after-wards dissolved. From the last order this appeal is taken.
The important question necessary to be decided is, whether the sale by the sheriff passed any title to Samrnon?
It has been very correctly said, that judicial sales are al
But this case is said not to be affected by that of Alexander vs. Ghiselin, because there no sale was made, whilst here
It has also been insisted that there is an essential difference between this case and the one reported in 5 Gill, 179, inasmuch as there the fi. fa. was issued and levied before the petition, and the sale prevented by injunction; and here the fi.fas. being levied prior to the application, writs of vendi. were subsequently issued.- Those writs having been issued by a court of general jurisdiction, commanding the sheriff, after the insolvent’s petition, to make sale of the property specifically named in the writs, it is contended, gave the officer such power to sell, that the purchaser acquired rights' under his sale which cannot now be resisted successfully by the trustee. This, as a legal proposition, we cannot assent to.
We have seen that the fight to sell under the fi. fas. was taken away by the petition of the insolvent, and the appointment of his trustee. If so, the writs of vendi., whether issued before or after the application, could not restore the right. A vendi. confers no power on a sheriff which he did not possess under the fi.fa. The former only commands and' requires him to do what he could have done under the latter. The fi fa. is the effective writ. He could sell under it after a levy, without a vendi. Clerk vs. Withers, Ld. Raym., 1072. 2 Tidd’s Pr., 1013, (new ed.) 1 B. & A., 230. In Clark vs. Belmear, 1 G. & J., 448, the Court of Appeals say : “The fieri facias is the effective writ in these cases, it not only authorises the sheriff to seize, but to sell;' very different is the office of a venditioni exponas. That confers no new power to the sheriff; it
The appellants’ counsel objected to the validity of the deed from the insolvent to his trustee, because it was not acknowledged before the proper officer; and also because it has not been recorded. The first objection he eventually abandoned, and properly so. The last need not be noticed, for the reason that
But it is contended, that if the objection to the deed for not being properly recorded cannot be sustained, still, under the act of 1827, ch. 70, sec. 8, Sammon took a good title, by virtue of the sheriff’s sale to him. It is said the property in controversy if included at all in the deed, is so defectively described that it cannot pass by the conveyance.
Assuming, then, this property is to be considered as if not mentioned in the deed, the appellants claim that, by the act of 1827, the sale made to Sammon was valid. But here, likewise, we have the authority of Waters vs. Dashiell for saying, if the property was not included in the conveyance, the sheriff had no authority to sell. The construction there given to that act was designed to make it harmonize with the principles established in Alexander vs. Ghiselin, so as to render the different portions of the insolvent system uniform, and not to have one part inconsistent with another. The interpretation put upon-the act of 1805, ch. 110, in the last mentioned case, fully justifies that given in Waters vs. Dashiell, in regard to- the act of 1827, ch. 70. By this last decision the lien of the creditor, who finds out property which the insolvent has failed to include in his deed or schedule, and has not delivered over to the trustee, but may have intentionally concealed, is protected in his lien, precisely to the same extent which an execution creditor is, whose fi. fa. has been levied before the application. And this lien right is a fair compensation for the vigilance and activity displayed in searching out the concealéd property.
In regard to the effective operation of the transfer of property to the trustee by the insolvent’s application, in addition to what has already been said, see the strong language used in 5 Gill, 178 to 180; and also in the case of Somerville vs. Brown, 5 Gill, 425.
From what- has been said, it follows as a necessary consequence, that Sammon took no title under the sheriff’s sale; of
The case is a hard one, and if we had the authority to grant relief, we should do so with great cheerfulness. But the assets in insolvency are not to be distributed in a court of equity. That duty is to be performed by the comt having exclusive jurisdiction over cases of insolvency. However, nothing is here said which denies to that tribunal the right, when disposing of the proceeds of this property, after a sale by the trustee, to substitute the purchaser at the sheriff’s sale, or those claiming under him, in the place of the creditor whose lien may have been paid by the proceeds of sale under the executions.
Order affirmed, and bill dismissed.