Martin v. Jewell , 1873 Md. LEXIS 26 ( 1873 )

Brent, J.,

delivered the opinion of the Court.

The object of the bill filed in this case by the appellant, is to obtain an injunction prohibiting a sale of certain personal property by a constable. Upon demurrer to the bill the Court passed an 'order dissolving the injunction which had been previously granted, and from that order the present appeal is taken.

The material facts and averments, to which it is necessary to refer, are as follows : The appellee, Jewell, on the 31st of January 1867, obtained before a justice of the peace two judgments against a certain David S. Smith, upon which executions were issued on the 12th of December of the same year. These executions were returned, and writs of venditioni exponas issued on the 19th of June 1868. Under these writs certain personal property, included in a mortgage from Smith to the appellant, dated the 29th of November, 1867, and recorded on the same day, and a crop of wheat growing on the farm of the appellant, which was tenanted to Smith, were advertised to be sold on the 6th of July, 1868. By an agreement between Smith and the appellant, dated the 2nd of December, 1867, the appellant was entitled to one-half of this crop of wheat by way of rent, and the interest of Smith in the other half was mortgaged to him on the 20th of March, 1868. The agreement of rent was modified on the 7th of April of the same year by another agreement between the same parties providing “that’the proceeds of the entire produce oí' the farm shall be paid to Martin, and the crops of every sort shall be shipped and sent to market in his (Martin’s) name, to the end that the said Martin may be first paid as well his rents therefrom, as also all moneys advanced by him, and all accounts for provisions, machinery, teams, labor, property and matters of every sort furnished by him to the said David S. Smith.” It is also alleged that the judgments under which these executions were issued are illegal and void.

We do not think the judgments referred to can be called in question by this appellant. He has no such interest in them as can justify him in coming into a Court of Equity, and asking that they may be set aside. They are entirely between Smith and Jewell, and he, the appellant, is not in any manner liable under them.

He is however interested in the property which was advertised under the writs issued upon them, and over this question as presented by his bill a Court of Equity has ample jurisdiction to grant relief. All the property advertised to be sold, except the crop of wheat, is included in the mortgage of November, 1867. In this property Smith, the defendant in the judgments, had only an equitable interest when the executions of December, 1867, were issued, and it is well settled that a debtor’s equitable estate in personal property cannot at law be seized and sold under a fieri facias. Rose & Gauss vs. Bevan, 10 Md., 470; Harris and others vs. Alcock, 10 G. & J., 251. In the latter case the mode by which a creditor may pursue such interest of his debtor is very clearly and distinctly pointed out. The entire growing crop of wheat was also advertised for sale. The appellant by the terms of the tenancy was equally interested in it with Smith, who hy the agreement of December was to gather and secure it in proper time, put it in good condition and order for market, and ship it at such times as the appellant Martin might direct.

(Decided 21st February, 1873.)

If the property levied upon had been sold as advertised, we do not think the appellant could have heen compensated at law. It would have broken up his tenant Smith, and destroyed his means of making a crop, in which this appellant had an interest of one half. It would have involved him in numerous law suits and long delays, and effectually prevented his tenant from carrying out the terms of his tenancy. Although the bill does not aver “irreparable injury,” the facts, gathered from it and the accompanying exhibits, are sufficient to show, that such would he the result, if the relief asked for is refused. The stock and farming utensils would have heen sold at a season when most needed, and without authority of law. The interest of the tenant in the growing crop of wheat would have passed into other' hands, and he could not, even if willing, have so controlled and managed its preparation for market' as to have carried out and complied with the obligations into which he had entered. These woulcj/ have entailed losses upon the appellant, which would have heen so speculative and uncertain, that they could not have been estimated in a Court of law with any sufficient degree of accuracy.

In our opinion the averments of the ■ bill entitle the appellant to an injuncton. The order dissolving it will therefore he reversed, and the case remanded for further proceedings.

Order reversed and cause remanded.