Adkins, J.,
delivered the opinion of the Court.
This is a suit in trover by .appellee against appellant for the alleged wrongful appropriation to his use of the proceeds of the tenant’s part of certain tobacco' shipped jointly by William B. Olaggett, the landlord, and J. Irving Parker, the tenant, of a farm in Prince Geoi’ge’s County, Md., to appellant, a commission merchant of Baltimore City. Parker being indebted to The Matthews-Howard Motor Company, of Washington, D. 0., for purchase money fox* a motor truck, gave the company four conditional sales judgment notes amounting in all to' more than $1,100. These were all due in the summer of 1921, and were placed in .appellee’s hands for collection. He sent for Parker and told him suit would
bo brought unless he executed to appellee a bill of sale of his interest in this tobacco, and that the necessary papers were prepared for suit and judgment. Whereupon Parker executed a hill of sale to appellee in form following:
“I, J. Irving Parker of Marlboro, Prince George’s County, in the State of Maryland, in consideration of the sum of ten ($10.00) dollars paid me by Clarence M. Roberts of the State and County aforesaid, do hereby bargain and sell to the said Clarence M. Roberts the following property: All of my one-half (%) interest in the crop of tobacco raised by me in the year 1920 on the farm of William B. Olagett, in Melwood District of Prince George’s County, Md., consisting of about twenty thousand (20,000) pounds and now stored in the barns on said farm.; also all of my one-half ( Vs) interest in the crop of wheat raised by me in the year 3921 on the farm of Robert L. Hall, in Marlboro, District of Prince George’s County, Md., consisting of about four hundred (400) bushels, and now stored in the bams on said farm; also one International motor truck, Ho. 10464, now in my possession.
“Witness my band and seal this 26 th day of July, 3921.
“J. Irving Parker. (Seal)
“Witness: O. Ernest Coale.”
“St ate of Maryland, Prince George’s County, to wit:
“I hereby certify, that on this 26th day of July, in the year nineteen hundred and twenty-one, before the subscriber, a notary public of said State, in and for the couni-y aforesaid, personally appeared J. Irving Parker and acknowledged the foregoing bill of sale to be his act; and at the same time before me also appeared Clarence M. Roberts and made oath in due form of law that the consideration in said bill of sale is true and bona fide as therein set forth.
“(Seal)
“O. Ernest Ooale,
“Hotary Public.”
According to the testimony of appellee, this hill of sale was given to secure the claim of the motor company. According to Parker’s testimony it was understood and agreed that appellant’s claim for advances was to he first paid. Appellee denies this, hut admits that Parker, after the hill of sale was given, spoke of owing, other money, and said he was perfectly willing to give appellee the hill of sale because be realized appellee would give him an opportunity to work it out.
“I
told him after taking the bill of sale and it was recorded I was satisfied Matthews & Howard would not require him to pay the full amount of the indebtedness at once. I expected to get some money out of the wheat mentioned in the hill of sale. It got away from me.”
Witness subsequently admitted he did not know whether the wheat had been sold or not. He also testified that Parker still had the truck; that he never demanded from Parker that he should ship> the tobacco in the name of the Matthews-Howard Company and that witness knew Parker was going to follow out the custom with them that the tobacco would be shipped in the name of the landlord and tenant; that witness did not want to do anything to embarrass Parker with his landlord, but expected him to turn the money over t» witness when the tobacco was sold, or to notify witness be bad shipped it, or to notify witness when it was sold.
Appellant and Parker testified that at the time the hill of sale was given Parker was indebted to appellant in the sum of $605.93 for advances; that Parker stated in the presence of Dudley and Roberts that Roberts knew all about Parker’s owing money, and that Parker told him that “I would not give the hill of sale except it was understood that my tobacco was to pay the advance I had gotten on it,” and that Roberts did not deny it; that this was repeated when they came to Stanley’s office, and again Roberts did not deny it. Appellee in his testimony admits that Parker stated in his presence, in appellant’s office and in Stanley’s office; that Parker told witness that he, Parker, had to pay out other money from this tobacco when he gave witness the bill of sale. He says
he did not deny it because at that time he was trying, to keep in the good graces of Mr. Dudley, because he had not then declined to honor a draft which Parker had drawn on him in favor of witness.
The contentions of appellant are:
1. That .appellee had no interest in the property conveyed by the hill of sale, because the evidence admitted without Objection showed that there was no consideration money from appellee.
2. That evidence of appellee himself, as well as that of Parker, admitted without objection, showed that the bill of sale, though absolute in form, was intended as a chattel mortgage, and, under article 66, sections 2 and 8, of the Oode, was a lien only for the consideration mentioned therein.
3. That under article 2, section 1, of the Oode, appellant, on receiving the tobacco shipped to him by Parker, was entitled to treat Parker as the owner thereof, and to sell it in accordance with their agreement, and is, therefore, not liable in an aetion of trover.
With reference to numbers 1 and 2, it may be said that it is true there was no consideration moving from the plaintiff, and that the bill of sale was shown by the undisputed testimony, including that of the appellee himself, to have been intended to secure a debt or debts owed by Parker to a third person or persons. In that light the bill of sale must be treated as a constructive deed of trust. It will be unnecesr sary therefore to decide whether, if the bill of sale had been given directly to appellee’s clients, it would in a court of law, on the testimony in this ease, be held to he a chattel mortgage within the meaning of article 66, sections 2 .and 3 of the Oode.
As a deed of trust it is not a deed in the nature of a mortgage, and therefore does not come within the said Code provisions. Ba
nk of Commerce
v.
Lanahan,
45 Md. 396.
As to the third contention, even if article 2, section 1, of the Oode, was intended to apply to advances made prior to
the actual shipment of the goods consigned, it in express terms excludes “agricultural productions.”
It was decided in
Ruhl
v.
Corner,
63 Md. 179, that a factor does not acquire a lien for previous advances to one who does not own the goods at the time of shipment, even though they may come into' the factor’s possession.
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Adkins, J.,
delivered the opinion of the Court.
This is a suit in trover by .appellee against appellant for the alleged wrongful appropriation to his use of the proceeds of the tenant’s part of certain tobacco' shipped jointly by William B. Olaggett, the landlord, and J. Irving Parker, the tenant, of a farm in Prince Geoi’ge’s County, Md., to appellant, a commission merchant of Baltimore City. Parker being indebted to The Matthews-Howard Motor Company, of Washington, D. 0., for purchase money fox* a motor truck, gave the company four conditional sales judgment notes amounting in all to' more than $1,100. These were all due in the summer of 1921, and were placed in .appellee’s hands for collection. He sent for Parker and told him suit would
bo brought unless he executed to appellee a bill of sale of his interest in this tobacco, and that the necessary papers were prepared for suit and judgment. Whereupon Parker executed a hill of sale to appellee in form following:
“I, J. Irving Parker of Marlboro, Prince George’s County, in the State of Maryland, in consideration of the sum of ten ($10.00) dollars paid me by Clarence M. Roberts of the State and County aforesaid, do hereby bargain and sell to the said Clarence M. Roberts the following property: All of my one-half (%) interest in the crop of tobacco raised by me in the year 1920 on the farm of William B. Olagett, in Melwood District of Prince George’s County, Md., consisting of about twenty thousand (20,000) pounds and now stored in the barns on said farm.; also all of my one-half ( Vs) interest in the crop of wheat raised by me in the year 3921 on the farm of Robert L. Hall, in Marlboro, District of Prince George’s County, Md., consisting of about four hundred (400) bushels, and now stored in the bams on said farm; also one International motor truck, Ho. 10464, now in my possession.
“Witness my band and seal this 26 th day of July, 3921.
“J. Irving Parker. (Seal)
“Witness: O. Ernest Coale.”
“St ate of Maryland, Prince George’s County, to wit:
“I hereby certify, that on this 26th day of July, in the year nineteen hundred and twenty-one, before the subscriber, a notary public of said State, in and for the couni-y aforesaid, personally appeared J. Irving Parker and acknowledged the foregoing bill of sale to be his act; and at the same time before me also appeared Clarence M. Roberts and made oath in due form of law that the consideration in said bill of sale is true and bona fide as therein set forth.
“(Seal)
“O. Ernest Ooale,
“Hotary Public.”
According to the testimony of appellee, this hill of sale was given to secure the claim of the motor company. According to Parker’s testimony it was understood and agreed that appellant’s claim for advances was to he first paid. Appellee denies this, hut admits that Parker, after the hill of sale was given, spoke of owing, other money, and said he was perfectly willing to give appellee the hill of sale because be realized appellee would give him an opportunity to work it out.
“I
told him after taking the bill of sale and it was recorded I was satisfied Matthews & Howard would not require him to pay the full amount of the indebtedness at once. I expected to get some money out of the wheat mentioned in the hill of sale. It got away from me.”
Witness subsequently admitted he did not know whether the wheat had been sold or not. He also testified that Parker still had the truck; that he never demanded from Parker that he should ship> the tobacco in the name of the Matthews-Howard Company and that witness knew Parker was going to follow out the custom with them that the tobacco would be shipped in the name of the landlord and tenant; that witness did not want to do anything to embarrass Parker with his landlord, but expected him to turn the money over t» witness when the tobacco was sold, or to notify witness be bad shipped it, or to notify witness when it was sold.
Appellant and Parker testified that at the time the hill of sale was given Parker was indebted to appellant in the sum of $605.93 for advances; that Parker stated in the presence of Dudley and Roberts that Roberts knew all about Parker’s owing money, and that Parker told him that “I would not give the hill of sale except it was understood that my tobacco was to pay the advance I had gotten on it,” and that Roberts did not deny it; that this was repeated when they came to Stanley’s office, and again Roberts did not deny it. Appellee in his testimony admits that Parker stated in his presence, in appellant’s office and in Stanley’s office; that Parker told witness that he, Parker, had to pay out other money from this tobacco when he gave witness the bill of sale. He says
he did not deny it because at that time he was trying, to keep in the good graces of Mr. Dudley, because he had not then declined to honor a draft which Parker had drawn on him in favor of witness.
The contentions of appellant are:
1. That .appellee had no interest in the property conveyed by the hill of sale, because the evidence admitted without Objection showed that there was no consideration money from appellee.
2. That evidence of appellee himself, as well as that of Parker, admitted without objection, showed that the bill of sale, though absolute in form, was intended as a chattel mortgage, and, under article 66, sections 2 and 8, of the Oode, was a lien only for the consideration mentioned therein.
3. That under article 2, section 1, of the Oode, appellant, on receiving the tobacco shipped to him by Parker, was entitled to treat Parker as the owner thereof, and to sell it in accordance with their agreement, and is, therefore, not liable in an aetion of trover.
With reference to numbers 1 and 2, it may be said that it is true there was no consideration moving from the plaintiff, and that the bill of sale was shown by the undisputed testimony, including that of the appellee himself, to have been intended to secure a debt or debts owed by Parker to a third person or persons. In that light the bill of sale must be treated as a constructive deed of trust. It will be unnecesr sary therefore to decide whether, if the bill of sale had been given directly to appellee’s clients, it would in a court of law, on the testimony in this ease, be held to he a chattel mortgage within the meaning of article 66, sections 2 .and 3 of the Oode.
As a deed of trust it is not a deed in the nature of a mortgage, and therefore does not come within the said Code provisions. Ba
nk of Commerce
v.
Lanahan,
45 Md. 396.
As to the third contention, even if article 2, section 1, of the Oode, was intended to apply to advances made prior to
the actual shipment of the goods consigned, it in express terms excludes “agricultural productions.”
It was decided in
Ruhl
v.
Corner,
63 Md. 179, that a factor does not acquire a lien for previous advances to one who does not own the goods at the time of shipment, even though they may come into' the factor’s possession. In the present case Barker, at the time of shipment of the tobacco in controversy, had parted with his title thereto and to all interest therein except as to such surplus of proceeds as there might be after the satisfaction of the debt secured by the deed of trust.
From the views above expressed it follows that we do not find ,any reversible errors in the rulings of the trial court either on the testimony or the prayers. The reporter is requested to set out the rejected prayers of appellant. The testimony excluded was in no way material to the issues involved.
There is some uncertainty as to whether or not a plea on equitable grounds was filed by appellant. In any event a copy of it was not served on appellee in compliance with the rules of court. But it is immaterial whether such a plea was filed or not. A court of equity could not sanction the assumption by a beneficiary of the rights and duties of the trustee, especially where other interests may be involved.
The affirmation of the judgment will not prevent the appellant from asserting in a court of equity any right which he may be able to establish as a 'beneficiary under the deed of trust to the proceeds of the tobacco thereby conveyed. But it must be understood that we are intimating no opinion as to the weight of testimony in this case bearing upon the position of appellant in that regard.
Judgment affirmed, with costs to appellee.