Everett v. State

• Decision Date: 12 February 1868
• Citation: 28 Md. 190
• Parties: JOHN EVERETT and JOSEPH DILLEY v. THE STATE OF MARYLAND, use of THOMAS J. MCKAIG and THOMAS PERRY, receivers.
• Court: Maryland Court of Appeals

28 Md. 190

JOHN EVERETT and JOSEPH DILLEY v. THE STATE OF MARYLAND, use of THOMAS J. MCKAIG and THOMAS PERRY, receivers.

Court of Appeals of Maryland

February 12, 1868

APPEAL from the Circuit Court for Allegany County.

This was a suit brought upon an appeal bond, the conditions of which will be found set forth in the opinion of this Court. The breaches were assigned in the declaration. The defendants pleaded substantially the following pleas:

1st. That the receivers induced Neff to distrain upon and take the property for rent, under the distress of 8th May, 1862, and that he sold the same and thereby deprived Everett of the property.

2d. That Neff distrained upon the property on the 17th April 1862. That Avery and others, by the agreement of the 22d April, agreed with Neff that he should abandon his distress and let the receivers sell the property, and that he should be paid his rent out of the proceeds, that in consideration thereof he abandoned his distress. That the receivers, after the filing of the appeal bond, delivered the property back to Everett on the 5th of May, and that Neff on the 8th of May again distrained and sold the property.

3d. That the receivers procured Neff to distrain the goods on the 8th of May, for rent due from John S. Tough, deceased.

4th. That Tough died indebted to Neff for rent of certain coal mines, that after his death, and the appointment of Everett as his administrator, certain persons claiming to have been employed by Tough, in his lifetime, as miners in getting out coal, filed a petition in the Circuit Court for Allegany county, under the provisions of Article 1, sections 99 to 103 inclusive, of the Code of Public Local Laws, that such proceedings were had, that on the 22d of April, 1862, the Court appointed McKaig and Perry receivers to take charge of the personal estate of the said Tough, and that upon their appointment and qualification, Everett delivered to them the personal estate of the said Tough, that Neff distrained upon the same for his rent; that the receivers and Neff agreed with the claimants in said petition, that he should abandon his distress, allow the receivers to sell the property, and that he should be paid out of the proceeds his claim for rent, and the balance should be paid to such of the claimants as should establish their claims thereto, that in execution of this agreement Neff abandoned his distress and delivered the goods to the receivers; that Everett appealed from the order appointing the receivers, to the Court of Appeals, and filed his appeal bond; that the Circuit Court thereupon passed an order directing the receivers to deliver to him as administrator as aforesaid, the goods and chattles of the said Tough, that said Everett was proceeding to sell said goods, but before he could sell the same, the said Neff, by the procurement of the receivers, sued out another distress warrant, and levied the same upon the goods and chattels remaining on the demised premises, and sold the same in satisfaction of the rent.

5th. Non damnificatus as to the receivers.

6th. Non damnificatus as to Avery and others, the claimants under the miners' lien law.

7th. That Neff distrained and sold part of the goods for rent due him; and as to the balance, that Everett sold them in due course of administration, under an order of the Orphans' Court, and has always been ready and willing to pay over the proceeds to the receivers.

8th. That Everett did not sell and convert the property to his own use.

9th. That the receivers recovered no costs in the Court of Appeals.

10th. That said Everett did not prosecute his said appeal with effect; that the orders were affirmed by the Court of Appeals; that the said Circuit Court passed an order directing the receivers to deliver the property back to Everett, which they did, and that the said order under which he received them is still unreversed and in full force and effect.

To these pleas the plaintiff demurred; the Court overruled the demurrer as to the first, third and fourth, on which issues were then joined, and sustained it as to the others.

The plaintiff asked the Court to instruct the jury as follows:

1st. That there is no evidence in the case from which the jury can find that Thomas J. McKaig and Thomas Perry, induced or procured the said John Neff to make the distress mentioned in the defendants' first, third and fourth pleas.

2d. That if the jury shall believe from the evidence in the cause, that the valuation or appraisement of the property in controversy made by Douglas Percy and Wm. Parker, as offered in evidence, was a fair valuation of the property at the time the same was made, and that the same was the value, then the plaintiff is entitled to recover in this action, the amount of said appraisement, deducting the amount paid by Everett to Wm. Parker, for keeping and preserving said property, if the jury should believe the said Everett did pay the same to said Parker, and also deducted the amounts paid by said Everett as administrator, in the discharge of his duties as such administrator, if the jury shall find that he paid any such amounts.

And the defendants then offered the following prayers:

1st. That if the jury shall find from the evidence in the cause that John S. Tough in his lifetime, was the tenant of John Neff, under and by virtue of the lease or agreement, between John Neff and Douglas Percy and others, and the assignments and modifications thereof, now in evidence; and that said Tough departed this life largely in arrear, and indebted to said Neff, for rent due under said demise, and that the goods and chattels in controversy, were delivered to said Everett on said demised premises; and that said McKaig and Perry were receivers, as stated in the declaration in this cause, and that said Everett was administrator of said Tough, and that he as said administrator, received said goods and chattels from said receivers under the order of the Court in said cause of Avery and others, as petitioners; and that said rent still remained unpaid and in arrear. And that said Neff on the 8th day of May, 1862, issued a distress warrant and thereby and thereunder took said goods and chattels on said demised premises, as and for a distress for said rent, so then due and in arrear, and that said goods and chattels when so taken, were remaining upon said demised premises, without the fault of said Everett, and that said Neff sold said goods and chattels under said distress, then the plaintiff cannot recover in this action for the goods and chattels so taken.

2d. That if the jury find the facts stated in the first prayer, and shall also find, that said McKaig and Perry or either of them, induced or procured said Neff to distrain and take said goods and chattels, then the plaintiff cannot recover for any goods so taken.

3d. That if the jury shall find from the evidence in the cause, that the said goods and chattels or any part of them, were taken by John Neff, under a distress for rent, by the inducement or procurement of said receivers or either of them, or that they or either of them consented to such taking, then the plaintiff cannot recover for any goods and chattels so taken.

4th. That if the jury shall find that said Neff distrained said goods and chattels as stated in their first prayer, and that said receivers knew of said distress warrant, or acquiesced in the same, then such consent or acquiescence is evidence, from which they may find that they procured or induced said Neff to distrain said goods and chattels.

5th. That if the jury shall find the facts stated in the first prayer, and shall also find, that said Everett afterwards brought suit against said Neff, for taking said goods, and that said receivers acted as attorneys for said Neff in said cause, and as such attorneys assisted him to defend the action of said Everett against him, and that said receivers admitted in the trial of said cause against said Neff, that they had consented to said agreement between Neff and Thomas Devecmon, as attorney for Avery and others, the petitioning creditors aforesaid, and received the goods from Neff under said agreement, then they may find that the said receivers consented to and procured the issuing of said distress.

6th. That if the jury find that said Everett, as administrator of said Tough, sold said goods and chattels, or any part of them under the order of the Orphans' Court of Baltimore city, and that such sale was fairly made, then the amount which they brought at such sale, is evidence that the amount for which they so sold, is the true value of said goods and chattels, and the jury may so find.

7th. That if the jury shall find that said Neff distrained part of said goods and chattels, and sold the same, and that such sale was fairly made, then the proceeds of such sale is evidence of the true value of said property so taken and sold, and the jury may so find.

8th. That the plaintiff cannot recover in this case:

1st. Because the receivers for whose use the suit is brought, have no interest in, or right of action on the bond declared on in said case.

2d. Because the said receivers are not parties to said bond declared on, nor embraced in the conditions of the same.

3d. Because the order directing the receivers to deliver the property in controversy in this action, to the defendant Everett, has not been reversed or set aside.

4th. Because the receivers have offered in evidence no order of the Court which appointed them, directing them to bring said action, and authorizing them to possess said goods.

9th. That if the jury shall find from the evidence in the cause that under the lease and assignments and modifications offered in evidence, there was the sum of fourteen hundred and twenty-six dollars and...