Gunby v. Mack Intern. Motor Truck Corp.

• Decision Date: 21 June 1928
• Docket Number: 46.
• Citation: 142 A. 596,156 Md. 19
• Parties: GUNBY ET AL. v. MACK INTERNATIONAL MOTOR TRUCK CORPORATION.
• Court: Maryland Court of Appeals

142 A. 596

156 Md. 19

GUNBY ET AL. v. MACK INTERNATIONAL MOTOR TRUCK CORPORATION.

No. 46.

Court of Appeals of Maryland

June 21, 1928

Appeal from Circuit Court, Wicomico County; John R. Pattison, Robt. F. Duer, and Joseph L. Bailey, Judges.

Petition by the Mack International Motor Truck Corporation against Graham Gunby and Frederick W. C. Webb, executors of the estate of Walter B. Miller, deceased, and others. Judgment for petitioner, and defendants appeal. Affirmed.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, DIGGES, PARKE and SLOAN, JJ.

F. W C. Webb, of Salisbury (Woodcock & Webb and Carroll E. Bounds all of Salisbury, on the brief), for appellants.

Hooper S. Miles, of Salisbury, and Charles B. Hoffman, of Baltimore (Frank B. Ober and Janney, Ober, Slingluff & Williams, all of Baltimore, on the brief), for appellee.

ADKINS J.

This case originated in a claimant's petition filed by appellee, a New Jersey corporation, against appellants, who are Julia L. Adkins and Virgil L. Adkins and certain of their judgment creditors, with judgments of record in Wicomico county, Maryland.

It appears from the petition that said judgment creditors hereinafter referred to as defendants or appellants, had sued out writs of fieri facias on their judgments pursuant to which said writs the sheriff of said county had seized and levied upon a certain Mack truck. The petition alleges:

That "at the time of the levying of said writ the said truck was and still is the property of your petitioner by virtue of the terms of a written conditional sales agreement between your petitioner, as vendor, and the said Virgil L. Adkins, as vendee, dated May 6, 1927, and recorded on May 14, 1927, among the records of Sussex county, state of Delaware, * * * wherein title to said truck was expressly reserved to your petitioner until such time as the said Virgil L. Adkins had paid the purchase price therefor in full accordance with the terms of said agreement; * * * that at the time of the execution of said agreement the said Virgil L. Adkins gave as his place of residence and post office address Delmar, Delaware, and that your petitioner, not then knowing that said town of Delmar is located partly in Wicomico county, state of Maryland, and partly in Sussex county, state of Delaware, recorded said agreement among the aforesaid records in Sussex county; that, upon learning that said Virgil L. Adkins actually resided within the Maryland limits of said town of Delmar, your petitioner immediately recorded said agreement among the conditional sales records of the circuit court for Wicomico county, Maryland."

The petition further alleged that there is still a balance due on said truck of about $2,800; that no part of the indebtedness represented by said judgments was incurred upon the strength or consideration of the ownership of said truck by the said Virgil L. Adkins. On the filing of a bond by the petitioner, the sheriff was directed by the court to deliver to it the truck, the case was tried by a jury, which rendered a verdict in favor of the petitioner, on which judgment was entered. This appeal is from that judgment.

The evidence supports the above-mentioned allegations. It shows that the petitioner had a branch office at Philadelphia, Pa., where the sale took place. The conditional sale agreement, dated May 6, 1927, filed in the case, describes Adkins as "located at R. D. No. 3, city of Delmar, county of Sussex, state of Delaware." It provided that delivery of the truck by the vendor to the vendee "does not pass title thereto, but neither the said property nor the title thereto shall pass by said delivery but both are and shall remain vested in and be the property of the vendor or its assigns * * * until said notes indorsing such installments of purchase price are paid in full in money"; that the vendee "should not remove the above-mentioned property, nor suffer the same to be removed, from the state of Delaware, * * * without the written consent of the vendor."

There was offered in evidence certain sections of the Uniform Conditional Sales Act, which act, it was agreed, is effective in the states of Delaware and Pennsylvania. By section 5 of that act it is provided that every provision in a conditional sale reserving property in the seller shall be void as to any purchaser from or creditor of the buyer, who, without notice of such provision, purchases the goods or acquires by attachment or levy a lien upon them, before the contract or a copy thereof shall be filed as hereinafter provided, unless such contract or copy is so filed within 10 days after the making of the conditional sale. Section 6 provides that such filing shall be in the office of the recorder of deeds in the county in which the goods are first kept for use by the buyer after the sale. Section 14 provides that:

"When, prior to the performance of the condition, the goods are removed by the buyer from a filing district in this state to another filing district in this state in which such contract or a copy thereof is not filed, * * * the reservation of the property in the seller shall be void as to the purchasers and creditors described in section 5, unless the conditional sale contract or a copy thereof shall be filed in the filing district to which the goods are removed, within ten days after the seller has received notice of the filing district to which the goods have been removed," etc.

There is a stipulation in the case that the indebtedness of Adkins to the respective defendants originated and was reduced to judgment as follows: The judgment of the defendants Gunby and Webb, executors of Walter B. Miller, was obtained on October 22, 1927, on two mortgage notes dated, respectively, September 14, 1921, and May 8, 1921, with interest on each from July 7, 1926. The judgment of the defendant A. H. Holloway was obtained on January 19, 1926, on note dated October 31, 1925, payable in 60 days. The judgment of the defendant L. W. Gunby Company was obtained before a justice of the peace on May 28, 1923, on note dated December 28, 1923, payable in 3 months.

It appears from the evidence that in October, 1927, executions were issued on said judgments and the truck was levied upon under said executions. Counsel for the judgment creditors then wrote the petitioner, informing it of the executions,...