Cahoon v. Miers

• Decision Date: 31 October 1887
• Citation: 11 A. 278,67 Md. 573
• Parties: CAHOON v. MIERS.
• Court: Maryland Court of Appeals

11 A. 278

67 Md. 573

CAHOON

v. MIERS.

Court of Appeals of Maryland.

October Term, 1887.

Appeal from circuit court, Kent county.

Replevin for "seven large shoats." One Pennington, who was tenant of a farm, executed on the nineteenth of January, 1877, to his landlord, Miers, a chattel mortgage, including, among other personal property, "fifteen shoats," to secure the payment of $967, with interest, on the nineteenth of January, 1879. The mortgage was duly recorded, and the mortgagor remained in possession of the property, and continued tenant of the farm, but never paid the mortgage debt, or any part of it. In 1886, Cahoon secured judgment against Pennington for $111.15, and shortly thereafter issued execution thereon. The sheriff levied upon the hogs which he found on the farm. At and before the sale Miers gave notice to the sheriff and the bidders that he claimed the hogs under his mortgage, as the increase of the shoats mentioned therein. That they were such increase was conceded. The proof was that the sow pigs embraced in the mortgage littered in 1878, and that Pennington kept some of his sows two years, and some three or four years. Four of the hogs levied on were 14 months old, and three were 11 months old, and all were too old to be following the sows for nurture. It thus appeared that these hogs must have been littered long after default had been made in payment of the mortgage debt, and were not the immediate increase of the original mortgaged stock. Notwithstanding the notice given by Miers, the sheriff proceeded to sell them "subject to all prior claims," and made a special return thereof. The judgment creditor, Cahoon, became the purchaser, and, relying upon the title thus acquired, replevied the hogs from Miers, the mortgagee.

Hope H. Barroll, for appellant. Richard Hynson, for appellee.

MILLER, J. Authorities are to be found mother states to the effect that a mortgage of domestic animals which makes no mention of the increase covers the increase, even as between the parties, so long only as it is necessary for the young to follow the mother for nurture, or at all events that a purchaser of such increase from the mortgagor who is left in possession thereof, without actual notice of the mortgagee's claim, will acquire a good title; and in one case the same thing was held in regard to the title of an attaching creditor. Jones, Mortg. §§ 149, 150; Winter v. Landphere, 42 Iowa, 471; Darling v. Wilson, 60 N. H. 59. But the law has long been settled differently in this state. In the case of Evans v. Merriken, 8 Gill & J. 39, (decided in 1836) there was a mortgage of several female negro slaves in which nothing was said as to their issue or increase. One of them had a child, born after default in payment of the nortgage debt, and while the mother was in possession of the mortgagor. When this child was about two years old the mortgagor sold it to his son for a valuable consideration, who thus became a bona fide purchaser for value, and immediately took possession of the child, and raised it, with the knowledge of the mortgagees, and without any claim of title on their part. Eleven years after the date of the mortgage, the mortgagees filed their bill for the sale of the mortgaged property, and the trustee appointed to make the sale sold the child with its mother. The question then arose whether the proceeds of sale of the child should go to the mortgagees towards payment of their mortgage debt, or to the purchaser from the mortgagor. The chancellor's decision was in favor of the purchaser, but this was reversed by the court of appeals. The question was conceded to be a new one, was argued before a very full court, all the judges but one being present, and they gave it a very careful consideration. In behalf of the appellee the argument was pressed that the mortgage having made no mention of the issue...