Crocker v. Hopps
| Citation | 28 A. 99,78 Md. 260 |
| Parties | CROCKER v. HOPPS. |
| Decision Date | 23 November 1893 |
| Court | Court of Appeals of Maryland |
Appeal from court of common pleas.
Trover by Samuel G. Crocker, trustee in insolvency of Andrew J Carle, against William Hopps, for the conversion of certain goods. From a judgment for defendant, plaintiff appeals. Reversed.
Argued before ROBINSON, C.J., and ROBERTS, BRYAN, BRISCOE, McSHERRY and FOWLER, JJ.
Wm. H Cowan, for appellant.
N. R Gill & Son and Wm. S. Bryan, Jr., for appellee.
On the 18th of February, 1892, Andrew J. Carle made a chattel mortgage of certain personal property, consisting of horses, carriages, and harness, to the appellee, William Hopps. Subsequently, Carle became insolvent, and, having applied for the benefit of the insolvent law, the appellant, Samuel J. Crocker, was duly appointed permanent trustee; whereupon the appellee, claiming title under his chattel mortgage, took possession of the property sued for, subsequent, however, to the conveyance thereof to the appellant as insolvent trustee. The appellee, as mortgagee, proceeded to sell, not only the chattels specifically described in the mortgage, but certain others, which are not therein mentioned, but which he contends should be subject to the mortgage to the same extent as if they had been so mentioned and described. This is an action of trover brought against the appellee by the appellant, as insolvent trustee, for the wrongful and illegal conversion of the goods sued for. The narr. alleges that the defendant converted to his own use three horses, three carriages, and one set of double harness, of great value, etc. Some criticism was made of this declaration, based on a want of particularity and definiteness in the description of the chattels sued for, but we think, although it is very general in its terms, yet it is in substantial compliance with the form prescribed by Code, p. 1103, art. 75, subd. 31. The defendant pleaded--First, the general issue; second, that under his chattel mortgage the chattels therein mentioned and described were his property, and were traded and exchanged by the mortgagor for the chattels in the declaration mentioned, with the assent of the appellee and by his authority, and that default had been made in said mortgage, and that the appellant was, by the terms thereof, entitled to the chattels thereby secured at the time he took the chattels sued for; and, third, for defense on equitable grounds, that, when said chattel mortgage was made, it was agreed between the parties thereto that the mortgagor could sell or exchange the mortgaged chattels, or any of them, and, if so sold or exchanged, they should be replaced by others of like character and value, and that the latter should be subject to the mortgage lien in the same manner that the original chattels were; that the chattels sued for had been lawfully obtained by the mortgagor to replace those originally mortgaged; and that default was made before appellee seized the goods sued for. To these pleas, the appellee demurred. Strictly, this demurrer, as appears from the record, applies to all the pleas, but it is evident it was only intended to apply to the second and third pleas, and not to the general issue plea of non cul., which is, of course; a good plea in trover. Counsel, in their arguments, limited the demurrer to the second and third pleas, and we shall so consider it. The court below overruled this demurrer, and at the close of the testimony the jury were instructed, at the request of the appellee, that under the pleading and evidence there was no legally sufficient evidence that the appellant was entitled to the goods sued for or any of them, or to the possession of said goods or any of them, and a verdict was directed for the defendant. From these rulings this appeal was taken, but, as they both involve the same question, --the validity of the pleas,--we shall proceed to consider them together.
The first plea is based upon the theory that because the appellee was in law, under his chattel mortgage, the owner of the chattels therein mentioned, he became entitled to the substituted or after-acquired chattels, in virtue of the legal effect of such chattel mortgage. But that such was not the legal effect of such a mortgage has been held more than once by this court. It has been the...
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