Tyler v. Abergh

Robinson, J.,

delivered the opinion of the Court.

This is a case involving the .title to a house and lot, which was sold by John R. Marchant to Charles Abergh. The purchase money was all paid, and at the request of the purchaser, the property was conveyed to his wife. The deed was delivered to her on the 1st of January, 1883, but by some oversight, it was not deposited for record until the 19th of March, 1884.

On the 17th of March, Marchant, the vendor, made a voluntary assignment of all his property to the appellant for the benefit of his creditors, in consideration of which they executed a general release of all claims and demands *20 against him. The deed to the appellant as assignee was recorded on the 17th of March, two days prior to the deed of Mrs. Abergh.

The Code provides “That where there -are two or more deeds conveying ” the same property “ the deed or deeds which shall be first recorded according to law shall be preferred, if made bona fide and upon good and valuable consideration.” Art. 24, sec. 16, of the Code of Pub. Gen. Laws.

The appellant contends, that the deed to him as assignee having been first recorded, is entitled under this section to priority over the deed of the appellee. But the answer to this is, that the deeds referred to in the Code, are deeds, as between bona fide purchasers. By bona fide purchasers, we mean persons who have either paid or advanced money upon the faith of the grantor’s actual title to the property transferred, or who have accepted specific property in payment of a specific debt, as in Busey vs. Reese, 38 Md., 264 . As between such purchasers, having deeds of the same property, the deed first recorded is entitled to priority. But an assignee for the benefit of creditors, stands upon a different footing. The property is conveyed to him to pay pre-existing debts, and not in consideration of money paid or advanced by him or by the creditors. He stands in the shoes of the assignor, and takes the property subject to all the equities against the assignor. He succeeds only to the rights of the assignor, and cannot enforce a right which the assignor himself could not enforce, for it is a familiar principle, that one cannot by his own voluntary act, transfer to another, a. right or title which he does not himself possess. Whatever may be decisions elsewhere, it is well settled in this. State, that an assigned for. the benefit of creditors, is not a bona fide purchaser. This was expressly decided in Ratcliffe vs. Sangston, 18 Md., 391 . This decision however, it is said, is not a controlling authority in this case,. *21 because the creditors had not released the debtor. But the release here was a general release, in consideration of a general assignment by Marchant, of all his property for the benefit of the releasing creditors. It was the condition prescribed by him, on which the creditors were allowed to come in and share in the distribution of the property. The proof does not show that the release was made upon the faith of Marchantes title to the property liow in controversy. The assignee in his testimony says, he was informed that Marchant was the owner of two houses, one of them being the house in dispute. He further says, some of the creditors told him, they had given Marchant credit upon information derived through the mercantile agencies, that he was the owner of these two houses and other property of the value altogether between fifteen and twenty thousand dollars. And the proof shows, he was in fact the owner of other property. So there is nothing to show that the release was executed on the faith of his ownership of the house and lot, which he had previously sold and conveyed to the appellee. And in saying this we are not to be understood as expressing the opinion that if the release had been so executed, it would have constituted the assignee or the creditors bona fide purchasers within the meaning of the Code.

(Decided 10th March, 1886.)

Decree affirmed.

Alvey, C. J., and Miller, J., dissented.