Opinion
[No. 238, September Term, 1960.]
Decided April 6, 1961.
LANDLORD AND TENANT — Landlord's Right To Distraint For Rent — Superior To Rights Of Vendor Under Conditional Contract Of Sale Executed And Recorded In Prince George's County. A distraining landlord may seize and sell any and all chattels not exempt under a statute, whether they belong to others or not. Code (1957), Art. 53, § 18, expressly protects the rights of conditional vendors under Code (1957), Art. 21, § 66, against a landlord's distraint, but the proviso in the statute contains the language "except in Prince George's County." It was held in the instant case that this statute affords no protection against a distraining landlord to a vendor under a conditional contract of sale, duly executed and recorded in Prince George's County. pp. 85-86
Decided April 6, 1961.
Appeal from the Circuit Court for Prince George's County (MARBURY, J.).
Replevin suit by J. Holland Sons, Inc., a conditional vendor, against Joseph Ettleman. Prior to the filing of the suit, Ettleman's landlord filed a distraint for rent in arrears and the sheriff seized the equipment sold. After the replevin suit was filed, the sheriff turned over the equipment to the conditional vendor, who, in his replevin suit had filed a bond. Ettleman's landlord filed as third party plaintiff a claim against the surety on the bond of J. Holland Sons, Inc., Fidelity and Deposit Company of Maryland. The trial court entered a judgment for the third party plaintiff, and the vendor and his surety appealed.
Judgment affirmed, with costs.
The cause was submitted to BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.
Submitted on brief by Everngam Tomes, G. Gregg Everngam and James F. Tomes, for appellants.
No brief and no appearance for appellee.
The question presented in this case is whether a vendor under a conditional contract of sale, duly executed and recorded in Prince George's County, can prevail against a distraining landlord of the vendee. The contract was entered into on September 30, 1958, and certain engraving equipment covered thereby was delivered to the vendee. The vendee being in default, the appellant filed a replevin suit on October 28, 1959, but on September 4, 1959, the landlord had filed a distraint for rent in arrears, and the sheriff on the same day seized the equipment. On November 9, 1959, the sheriff turned over the equipment to the appellant under the replevin suit, in which bond had been furnished, and on December 1, 1959, the landlord filed as third party plaintiff against the surety on said bond. The trial court entered a judgment for the third party plaintiff, and the vendor and his surety appeal here.
The appellant contends that it is protected by the terms of Code (1957), Art. 21, § 66, which in broad terms protects the rights of conditional vendors. The difficulty is however, that Code (1957), Art. 53, § 18, expressly protects the rights of conditional vendors under Art. 21, § 66, against a landlord's distraint, but the proviso contains the language "except in Prince George's County". The cases make it clear that a distraining landlord may seize and sell any and all chattels not exempt under a statute, found upon demised premises, for payment of rent, whether they belong to others or not. Wilhem v. Boyd, 172 Md. 79; Mears v. Perine, 156 Md. 56, 62, and cases cited. We must read the two statutes together. We cannot assume that the whole proviso was unnecessary. The exception as to Prince George's County subordinates the rights of conditional vendors there to a landlord's distraint. We find no merit in the appellants' contention that the language of Art. 53, § 18, just prior to the proviso, which contains an exemption in the case of distraint for ground rent, in any way limits the effect of the proviso, which refers to a distraint "upon any goods, chattels or other personal property on the premises not exempt under this section".
Judgment affirmed, with costs.