34 Md. 89 | Md. | 1871
delivered the opinion of the Court.
The facts of this case, as found in the record, are that Wilkinson obtained a decree in the Circuit Court for St. Mary’s county, for the sale of certain real estate which had been mortgaged to him by Tucker, and that Downs was appointed trustee, who sold the property, and the sale was reported to, and ratified by the Court; and the auditor’s account, after allowing expenses, &c., distributed the entire balance of the proceeds of sale to the mortgagee, that sum being insufficient to pay the whole of the mortgage debt, and still leaving a balance due the mortgagee. The appellant having obtained a judgment against the appellees Tucker and Wilkinson, after the dates of the two mortgages to Wilkinson, obtained an execution upon it after the decree for the sale of the property had been passed, and it was levied upon the land so decreed to be sold, but the sheriff forbore selling under the execution, in consideration of a promise made by
The case of Brawner vs. Watkins, et al., 28 Md., 217, cited in argument by the counsel of the appellant as authority for a judgment creditor coming into an equity case by petition,
Order affirmed and cause remanded.
Stewart, J., dissented.