88 Md. 240 | Md. | 1898
delivered the opinion of the Court.
The question in this case is a narrow one, and is presented upon certain exceptions filed by the creditors of the Surbridge Manufacturing Company of Washington County to the auditor’s second report distributing the proceeds of a receiver’s sale of personal property, which had been levied on under a H. fa. issued on a judgment held by the Whitman and Barnes Manufacturing Company, the appellee.
There were several exceptions to the account, but this appeal is from the order ratifying the auditor’s account No. 2 in so far as it sustains the distribution of
It further appears by an agreement of counsel filed in the case that this execution was laid in the hands of the sheriff about 11.30 A. M. on February 19th, 1894, and the levy on the personal property was made by the sheriff at twenty minutes after 2 P. M. on the same day. While the receiver did not take actual possession of the property until after the making of the levy, the sale was made by him in pursuance of an agreement which reserved whatever lien the appellee may have acquired by virtue of the levy.
The real controversy, then, is over the title to the property sold by the receiver and the disposition of the fund arising from the sale, and this, we think, is settled by the fact that the receiver was not appointed until sometime after the fi. fa. was placed in the hands of the sheriff. It is agreed that “ the execution was issued and laid in the hands of the sheriff about 11.30 o’clock A. M. on February 19, 1894, and that about one o’clock of the same day the Court appointed Frank W. Mish receiver, and that he immediately filed his bond with the clerk of the Circuit Court for said county, and that the levy on the personal property was made by the sheriff at twenty minutes after 2 P. M. on the same day.”
A lien fastens upon personal property from the time of the delivery of the writ of H. fa. to the sheriff. Selby v. Magruder, 6 H. & J. 454; Furlong v. Edwards, 3 Md. 100. The execution in this case was not only issued and in the hands of the sheriff before the appointment of the receiver, but the levy was actually made before the receiver had taken possession of the property. Under the provisions of our Code, Art. 23, sec. 269, where receivers are appointed by the Court, upon or before the dissolution of a corporation, they shall be vested with all the estate and assets of every kind belonging to such corporation from the time of their qualifying as receivers. Frank v. Morrison, 58 Md. 440; Gaither v. Stockbridge, 67 Md. 237. The cases of Farmer’s Bank of Delaware v. Beasten, 7 Gill and Johnson 428 and Everett, Adm. v. Neff, 28 Md. 187, have no application to the facts of this case.
As to the question of costs, we fully agree with the learned judge who decided this case below, that the distribution by the auditor of the costs of maintaining and disposing of the property was certainly an equitable one. The attaching creditor consented that the receiver should sell the property levied on, and that the proceeds should stand in place of the property, because its title under the attachment was being attacked. If the sale was delayed and unusual expense incurred in its management it was not the fault of the attaching creditor. The latter makes no objection to its part of the fund being charged with an amount greater than the Court would probably have allowed. The order of the 19th of January, 1898, overruling the exceptions filed by the Prentiss Tool and Supply Company and others and ratifying and confirming auditor’s account No. 2 will be affirmed.
Order affirmed with costs.
