Rose v. Bevan , 10 Md. 466 ( 1857 )

Le Grand, C. J.,

delivered the opinion of this court.

This appeal is taken from an order of the Superior Court of Baltimore city, sitting in equity, granting an injunction and appointing a receiver, on a bill filed by the appellees against the appellants.

The material averments of the bill may be thus stated: The appellees sold, at various times, to the appellant, Gauss, certain dry goods for which, from time to time, they took his promissory notes, which not being paid on their maturity, suits were brought before a justice of the peace, and judgments obtained thereon, amounting in number to five, whereon writs offt. fa. were issued, and levied on the goods of the said Gauss. The bill then alleges that the appellant, Rose, by virtue of a mortgage executed to him by Gauss, claims to prevent the execution and sale of the goods levied upon to satisfy the judgments of the appellees; that the property claimed to have been mort gaged, and in fact levied upon, is in value more than sufficient to satisfy the mortgage; that the appellant, Gauss, has no other property out of which the judgments of the appellees can be satisfied. The bill further avers that since the execution of the mortgage the appellant, Gauss, has been permitted to use and dispose of the goods mortgaged to Rose, and that a part of the goods levied on are not the same goods as those mortgaged, but. others; that if the goods levied upon be not taken from the possession of Gauss they will be disposed of, and the appellees subjected to an entire loss of their claim. The bill risks an injunction to prevent Gauss from selling the property, the appointment of a receiver to take charge of them, and sale thereof to satisfy, after the payment of the debt, secured to be paid by the mortgage to Rose, the claim of the appellees. The bill undoubtedly malees a good case. Its averments, on this appeal, whatever may be the real state of the case, must be taken as true. Among other things it denies the property levied upon to be the same as that covered by the mortgage. If it be not the same, then, to the extent of the difference, the mortgagee has no right to interfere, or, if any portion be the result of purchases made out of the proce'eds of sale of the goods mortgaged, he has no right, as to such portion, to interfere, he having no interest in, or lien on, the same. Hamilton vs. Rogers, 8 Maryland Rep., 301. The case of Clagett vs. Salmon, 5 Gill & John, 315, establishes the right of a mortgagee, before he has a right to foreclose, in the case of apprehended danger, or loss of the goods, to have a receiver appointed, and the case of Harris & Chauncey, vs. Alcock, 10 Gill & Johnson, 251, shows that, although a debtor’s equitable estate in personal property cannot be seized and sold under a fieri facias, yet, a creditor may file his bill and obtain a decree for the sale of the property absolutely, and pay off the incumbrances, and then satisfy his own claim. This is the case made by the present bill, and we therefore affirm the order appealed from and remand the cause for further proceedings.

Order affirmed and cause remanded.