GOODMAN v. BOEHME

1. Defendant, a judgment creditor, had execution issued and a levy made upon certain personal property of the debtor covered by a chattel mortgage which the debtor had given to the complainant. Subsequent to the levy, complainant foreclosed his chattel mortgage and obtained a constable's bill of sale for the goods. He then filed a claim of property which was tried before a judge and jury and which resulted in a verdict that the goods were the property of the defendant. Unsuccessful in obtaining a new trial, or in obtaining a writ of certiorari, complainant filed a bill seeking a decree awarding him possession of the goods and establishing the chattel mortgage as a valid lien prior to the lien of the sheriff's levy. Held, that having participated in the trial at law under a claim of property, complainant is bound by his election of remedies.

2. Complainant relied upon the title conveyed to him by the bill of sale in an attempt to eliminate an intervening creditor. This would indicate that at the time he considered that there had been a merger of the chattel mortgage in the title; in any event, that was the effect of his actions and it is now too late for him to take a contrary position.

PER CURIAM.

The order appealed from will be affirmed, for the reasons expressed in the opinion filed by Vice-Chancellor Berry in the court of chancery.

For affirmance — PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, WALKER, JJ. 13.

For reversal — None.