| Md. | Dec 15, 1854
delivered the opinion of this court.
The present record is the same with that on which the former appeal was decided, with the addition of proof that Rosenthal and Mosher applied for the benefit of the insolvent laws, on the 31st of January 1845, and that Glenn was appointed their trustee. 9 Gill, 201. This additional evidence does not vary the law of the case, because by the deeds of January 21st and 25th, 1845, all the interest and title, legal and equitable, of the petitioners, had been conveyed away, and there was nothing as to this property, on which the insolvent laws could operate. Malcolm vs. Hall, 9 Gill, 177. The case being substantially the same, whatever was décided on the former appeal must govern on this.
The first prayer of the appellants asserts that the mortgage did not operate to convey subsequently purchased goods, and that the onus of showing what proportion of the property, which was in the store at the date of the instrument had passed into the hands of the defendants, was upon the plaintiff. If either of these propositions be erroneous, the prayer being an entirety, was properly rejected Budd vs. Brooke, 3 Gill, 220.
The burden of pfoiff w’as upon the defendants. All the goods, fixtures, &C., in the store, had been conveyed to the plaintiff by a deed that is not impeached. Afterwards the defendants took possession of this property, or of what remained, together with the accounts and bóoks, from which the extent of the fiew purchases might probably have been ascertained, and sold it at public auctioh, by which, the Court of Appeals sáid, they committed a to'rt. A few days before the execution of the deed of trust thé property was abundantly sufficient to pay the plaintiff’s claim, and, but for their interference, might have so remained, until disposed of according to law' and the rights of persons interested. If they have by a tortious act, deprived thé plaintiff of the means of proving his cáse, as fully as they insist he should have doné, or, if, having possessed themselves of the books and accounts, they will'not produce them for the purpose of explaining'or rebut
The appellants’ second prayer was properly refused, because-there was no evidence of the supposed agreement or understanding between the appellee and his debtors, on which this prayer is based.
The appellants’ third prayer was abandoned. Their fourth assumes that the deeds of the 21st and 25th of January 1845, were for the same interest in the same property. But this-is not so. The plaintiff held t-he legal title as a security for his debt: the defendants- under their deed, were entitled to the equity of redemption only. This was distinctly decided on the former appeal. The facts on which this prayer was submitted were then before the court, and the question was raised by the plaintiff’s first prayer, which the court said should have been granted. Yet they held- that the defendants were only entitled to the proceeds of sale, provided they satisfied the mortgage debt, 9 Gill, 205. The act of 1825, ch. 203, therefore, cannot be said to have any application to the case.
The appellants have no reason to complain of the plaintiff’s prayers, as granted. The first is identical in terms with one that had been approved of on the former appeal, with the addition of a proviso limiting the plaintiff’s- recovery to a portion of the proceeds of sales in the defendants’ hands. Of this qualification they cannot complain, because, if erroneous, it would operate for their benefit, besides being the view of their liability, as presented by their first prayer, except as- to
Judgment affirmed.