56 Md. 314 | Md. | 1881
delivered the opinion of the Court.
James Young, Jr., conveyed to the appellee, the stock of carriages and wagons, finished and unfinished; and also the materials then being in his carriage factory.
The property was left in the possession of Young the bargainor, and the unfinished carriages were subsequently finished by him. Whether all the materials used in completing the carriages were the materials included in the bill of sale, or were in part bought by Young, the bargainor, after the date of the bill of sale, the evidence in the record is somewhat conflicting. But this question in the view we take of the case is quite immaterial.
Afterwards the appellants recovered a judgment against the bargainor, - and sold under execution ■ the carriages mentioned in the bill of sale. This suit is brought by- the appellee, to recover damages for the unlawful seizure and sale of the carriages by the appellants. And it is insisted
1st. That the mortgagee could not maintain an action at law against a judgment creditor of Rogers for selling under execution, goods purchased by Rogers after the date of the mortgage, upon the ground that one cannot sell that which has not either actual or potential existence at the time of the sale.
2nd. That the burden of proof was upon the mortgagee, to show that the goods sold under the execution, were on the premises at the date of the mortgage.
3rd. Where property mortgaged is commingled, with that subsequently acquired by the mortgagor, it is presumed to he done with the mortgagee’s permission, and if it he so intermixed as to prevent separation or identification, the rights of third parties are not to be affected thereby.
But here the sale was of a subject-matter existing in specie, and in the possession of the bargainor. The contract of sale was an executed contract, and the title to the carriages, whether finished or unfinished, passed to the appellee upon the execution and delivery of the hill of sale. The mere fact that parts of the materials used in finish
By the prayer offered by the appellee and granted by the Court, his right to recover was based upon the finding by the jury, that all the materials used in finishing the carriages were furnished by the appellee. This he was not obliged to prove. The appellants however, have no right to object to an instruction which was prejudicial to the appellee and not to themselves.
Eor these reasons, the judgment will be affirmed.
Judgment affirmed.