McCreery v. Sutherland

• Decision Date: 12 July 1865
• Parties: JAMES MCCREERY v. GEORGE A. SUTHERLAND.
• Court: Maryland Court of Appeals

23 Md. 471

JAMES MCCREERY v. GEORGE A. SUTHERLAND.

Court of Appeals of Maryland.

July 12, 1865

APPEAL from the Circuit Court of Baltimore city:

This appeal is taken from an order of the Circuit Court for Baltimore city, granting an injunction to stay the taking of a stock of goods of Sutherland, under writs of fieri facias, which had been issued on a judgment recovered by McCreery against Wroth & Fullerton, and on another judgment recovered, by the Union Bank of Maryland against the same defendants.

The bill states, that at the time of the filing thereof, the complainant was, and for more than a year prior to that time had been, engaged in business in the city of Baltimore, as a retail dry-goods merchant on his own account, in good credit and with a fair and increasing share of success, and was engaged in his sales as usual, when he was interrupted therein by a levy made on his whole stock of merchandise, of the value, at the least, of $20,000, by the sheriff of Baltimore city, who seized and took possession thereof, under color of the writs of fieri facias before mentioned--the said sheriff so taking the said stock as and for the property of the said Wroth & Fullerton; that the said Wroth & Fullerton had not any interest whatever directly or indirectly, in the property so seized and levied upon, or any part thereof; that the complainant, in the prosecution of his business, had so conducted himself as to secure to himself a very considerable custom, which was increasing, and bade fair to establish him in a large and increasing trade; that for the purposes of his trade, and to meet the demands of the then business season, he had purchased in New York and elsewhere, a very considerable stock, a part whereof was bought on credit, and remained unpaid for; that his means of payment for said goods were dependent on his receipts from sales thereof; that the removal and sale of his said stock of goods, under color of said executions, would deprive him of all the means and resources upon which he so depends, and would not only reduce him to insolvency, but his prospects for life as a young man must be irretrievably blasted, and his credit ruined beyond hope; --that no compensation which a Court of Law could give in the way of damages for the trespass, could afford him adequate relief; --and that even if this were otherwise, the said sheriff has no sufficient means to respond, in damages even, for the taking of so large an amount of property, and that McCreery, the plaintiff to one of said executions, is a nonresident.

The Court passed an order granting an injunction as prayed, and from this order the present appeal is taken.

The cause was argued before BOWIE, C. J., and BARTOL, GOLDSBOROUGH, COCHRAN and WEISEL, J. P. McLaughlin, for the appellant:

The question, and the only question is, whether, in this case, an injunction should issue to restrain the execution of the writ of fi. fa. It has been supposed that this was not an open question anywhere, where the common law of England has been adopted, but particularly in Maryland, after the decision in the cases of Lewis vs. Levy, 16 Md. Rep., 85; and, Freeland vs. Reynolds, 16 Md. Rep., 416. If this is still to be considered an open question in this Court, we beg to refer to the following cases, viz: Chappel vs. Cox, 18 Md. Rep., 513, 519. Pusey vs. Pusey, 1 Vernon, 273. Hamilton vs. Ely, 4 Gill, 34. Bowyer vs. Creigh, 3 Rand., 25. Allen vs. Freeland, Id., 70. Blondheim vs. Moore, 11 Md. Rep., 365. Green vs. Keen, 4 Md. Rep., 98, 105, 106. White vs. Flannigan, 1 Md. Rep., 525, 542.

Thos. S. Alexander and S. T. Wallis, for the appellee:

The injunction is not asked simply to stay the levy of an execution on goods, which the plaintiff to the execution claims to belong to his debtors, on the allegation that those goods really belong to the complainant. But it is likewise averred that those goods have a peculiar value, as forming a stock in trade, and that the sale thereof will have the further effect of destroying the trade of the complainant, and by destroying his credit, will materially impair his means of subsistence. The equity alleged is, therefore, in brief, irreparable damage, and it is submitted that where irreparable damage is impending, equity will interfere as freely for the protection of personal estate as of real estate. McCann vs. Taylor, 10 Md. Rep., 419, is a direct authority that equity will stay a sale of real estate on a bill stating a prima facie case against the judgment creditor, and that the sale would be attended with irreparable damage.

The conclusion is irresistible, that the same protection would be afforded to the possessor of personal property where irreparable damage would be the consequence of enforcing the execution. Warnick vs. Michael, 11 G. & J., 153, was a case where negroes had been taken in execution, and the injunction was dissolved, expressly on the ground that a title " above suspicion or doubt in relation to its fairness was not made out," and the counsel for the appellant conceded that equity might interpose for the protection of a fair title, where the plaintiff could show that his remedy at law was not adequate. In both cases the plaintiff derived title under the debtor to the execution, and in one case it was expressly averred, and in the other implicitly conceded, that the creditor denied the validity of such derivative title.

In the present case it is charged that a very considerable part of the stock of goods taken in execution had been purchased by the complainant, from time to time, in the city of New York, and that a part of such purchases had been effected on his personal credit, and there is nothing from which it can be inferred that Wroth & Fullerton ever had possession of or claimed title to any part of the stock. And whilst on the one hand the plaintiff shows ownership " " clear and undisputed," so, on the other, he shows that a sale of his stock under execution would not only be made at an under value, but likely utterly destroy his trade, and reduce him to a state of insolvency. That he could not recover damages adequate as a compensation for such wrongs must be apparent. Pacific Insurance Co. vs. Conard, 1 Bald. C. C., 142. Cromwell, et al., vs. Owens, 7 H. & J., 60.

Lewis vs. Levy, 16 Md. Rep., 86, and Freeland vs. Reynolds, Id., 416, relied on by the counsel of the appellant, are cases of execution against a mortgagor in possession. In each case the plaintiff's title was impeached. In the first, the injunction was dissolved, expressly on the ground that " the bill does not show that the property was of such a character, or possessed such peculiar value or interest to the owner, that he could not be adequately compensated by damages at law; " and, in the latter case, it was declared that the remedy of the appellants was " adequate and complete at law."

Those cases show, that although the case of Bridges vs. McKenna, 14 Md. Rep., 258, was decided on the ground that the plaintiff was a feme covert, it was not intended to deny the right of any other person to protection, who could show that the injury threatened could not be compensated for in damages. 3 Rand., 25, and Id., 170, ubi supra.

In Chappell vs. Cox, 18 Md. Rep., 513, it was held, that " the mere apprehension of injury, arising from the intermixture of the debtor's goods with those claimed by the plaintiff, and to which intermixture he tacitly consented," was not sufficient to sustain an injunction. But it was assumed, that if the officer making the levy was not abundantly able to meet the responsibility resulting from the levy on the property claimed by the plaintiff, his remedy at law could not be deemed adequate. In the present case, we alleged the insufficiency of the sheriff, and the non-residence of McCreery. We refer to 2 Story's Eq., sec. 926, for the general rule, that an injunction will issue to prevent a wrong which threatens loss of health, or of trade, or destruction of the means of subsistence. In Hamilton vs. Whitridge, 11 Md. Rep., 128, an injunction was granted to prevent the opening of a bawdy-house in proximity to the plaintiffs, on the ground of discomfort to them, and diminution in value of their property. In Gilbert vs. Mickle, 4 Sandf. Ch., 358, it was held, that obstruction to one's lawful business is a nuisance, which may be restrained by injunction. See, also, Barber vs. Barber, 21 How., 591. Gue vs. The TideWater Canal Co., 24 How., 257. Parker vs. Winnipiseogee Lake Co., 2 Black., 545. Osborn vs. Bank U. S., 9 Wheat., 841. Arundel vs. Phipps, 10 Ves., 130. Wood vs. Bowcliffe, 3 Hare, 308.

OPINION

BOWIE C. J.

We cannot affirm the order granting the injunction in this case, without departing from the best established principles and precedents. Mere trespass is not a ground for the interposition of a Court of Equity, even in cases of real estate; much less where the subject matter is personal property, of no peculiar character or value. Story's Eq., vol. 2, sec. 928. Amelung vs. Seekamp, 9 G. & J., 468. Hamilton vs. Ely, 4 Gill, 37, 38. Shipley vs. Ritter, 7 Md. Rep., 413.

The language of this Court, in Lewis, et al., vs. Levy, 16 Md. Rep., 90, is literally applicable to the bill before us. The learned Judge who delivered the opinion of the Court in that case, thus expressed himself: " There is nothing here which distinguishes the case from many others in which it has been held an injunction will not lie. The complainant claiming goods in a store, on which the appellants levied an execution against a third party, under whom the complainant asserts title, seeks the restraining process of equity to prevent their being sold under that writ. The bill does not show that the property was of such a character or...