Dickey, Tansley & Co. v. Pocomoke City National Bank

Boyd, J., delivered the opinion of the Court. Charles R. Lewis sold to the People’s Transportation Company, of Washington, D. C, a vessel named “Lady of the Lake,” and in part payment therefor the 'company executed, on the 24th day of August, 1894,.a mortgage on it for the sum of $30,000, payable in three equal payments of ten thousand dollars in four, eight and twelve months, respectively, with interest from date, “ as evidenced by three bills obligatory of said corporation” of even date therewith. The mortgage was recorded in the Custom House at Washington City. Some question was made at the argument as to whether the evidences of debt were promissory notes or single bills, but not only the form of the instruments shows them to be the latter, but the description of them in the mortgage, as above quoted, indicates very clearly that they were so intended to be by the parties. We will, therefore, without further discussion of that question, treat them as such in the consideration of the case. Franklin C. Lewis made application on behalf of his brother, Charles R. Lewis, to the Pocomoke City National Bank to discount the single bill which was payable four months after date, but being informed by the cashier that *291 the bank could not lend to any one person more than five thousand dollars, he returned on the ioth of September, 1894, with a note signed by himself and endorsed by Charles R. Lewis, and Charles R. Lewis and Company for five thousand dollars, dated September 1, 1894, and another for the same amount dated September 7th, which was made by Charles R. Lewis, endorsed by Franklin C. Lewis, and payable four months after date. With them he left as collateral the three single bills, the mortgage and insurance policies on the “ Lady of the Lake,” amounting to thirty thousand dollars. The single bill payable four months after date was endorsed in blank by Charles R. Lewis, but neither of the other two, nor the mortgage, nor the policies were endorsed. The latter were issued to the Transportation Company, but were so framed as to be payable to Charles R. Lewis, mortgagee, as his interest might appear. The note signed by Franklin C. Lewis as maker, was renewed for a month and then paid, and the other was finally reduced to four thousand dollars. The single bill, which was endorsed by Lewis, was duly presented for payment, but was not paid. On February 15, 1895, the “ Lady of the Lake ” was destroyed by fire, and on the 21st of that month Franklin C. Lewis presented a letter from Charles R. Lewis to the cashier of the bank requesting him to send the policies so that he could collect the insurance money, and promising to remit to the bank the amount due it out of the money so collected. The cashier mailed the policies to Charles R. Lewis, in order that he “might collect the money and pay the debt for which they stood pledged,” to use the language of the cashier. Some of the policies proved to be worthless, but suits which had been brought on others were finally compromised for $8,500.00. Messrs. Baldwin and Boston, the attorneys who collected the money, filed a bill of interpleader in the Circuit Court of Baltimore City, alleging that they had collected that amount and that after paying fees, expenses, etc., they had in hand $6,611.12, which was claimed by various creditors of Charles R. Lewis, *292 who were made parties to the proceedings. A decree was passed that the defendants interplead, and after considerable testimony was taken, another decree was passed directing that the fund be distributed in the following order: 1. To Edmund B. Duval, for services rendered and money expended by him in connection with the policies of the insurance upon the “ Lady of the Lake,” less such amount as he had received. 2. To the Pocomoke City National Bank the amount in full of its claim. 3. To Franklin C. Lewis the amount of interest paid by him to the bank as endorser for Charles R. Lewis, in subrogation to the rights of the bank. 4. To Edmund B. Duval, the Second National Bank of Baltimore and the Maryland Meter and Manufacturing Company, according to their respective priorities, as assignees under an assignment from Lewis to Duval, as trustee, of October 18, 1895. The costs were directed to be paid out of the fund and the entire amount being thus consumed, the bill was dismissed as to the other parties and the case referred to the auditor to state an account in accordance with the decree. Charles E. Dickey and Charles H. Dickey, partners, trading as Dickey, Tansley and Company, and also as the Maryland Meter and Manufacturing Company, and the Second National Bank of Baltimore, appealed from the decree, but the other parties did not. The Dickeys also appealed from an order of the Court dismissing a petition filed by them on the 27th of October, 1898, which alleged that Franklin C, Lewis was a member of the firm of C. R. Lewis and Company and other matters, and prayed the Court to refer the case to an Examiner or the Auditor to take testimony on the the matters alleged, and not to sign a decree in the case pending said proceedings. It has been expressly decided by this Court in Waring v. Turton, Trustee, 44 Md. 546, that no appeal lies from an order dismissing a petition for a rehearing filed under very similar cir *293 cumstances to those presented by the one in this case, and the appeal from that order will be dismissed. As the main question to be determined by us is whether the claim of the Pocomoke Bank is superior to that of Duval, trustee, under the assignment of October 18th, 1895, we will first ascertain what rights became vested in that bank in September, 1894, when the single bills, mortgage and insurance policies were left with it, as above described, and then see how far, if at all, the bank’s claim to the fund is affected by its sending the policies to Lewis on February 21, 1895, and by its subsequent conduct. There can be no question but that the title to the single bill, which was endorsed by Charles R. Lewis, at that time became vested in the Pocomoke Bank, as collateral security for the debt he owed the bank. The endorsement in blank, accompanied by delivery, authorized it to fill up the blank with an assignment to itself, and it could have sued the maker in its own name. Chesley v. Taylor, 3 Gill, 251; Jackson v. Myers, 43 Md. 462; Code, Art. 8, séction 1. It was wholly immaterial that it could not have sued Lewis as assignor, because it was not assigned under his hand and seal, as provided for by section 9 of the above-named Article of the Code. As it was only assigned as collateral, and Lewis was personally liable on the notes given by his brother and himself, it may have been thought unnecessary to take the assignment under his hand and seal, so as to thereby bind him, but however that may be, the assignment in blank gave the bank absolute control over it to the extent of the debt intended to be secured by it. The other two were not endorsed, but they were left with the bank as collateral, according to the testimony of Franklin C. Lewis, and Wm. F. King, the cashier, and indeed the bank still holds all three of them. The original proposition was to discount the single bill which first matured “ upon the placing of all the above-named papers as collateral security to secure the payment thereof,” and when the notes were taken with these collaterals, it is possible that only the one wa s *294 endorsed because it would mature before the notes would, and, if it had been paid, would have cancelled the indebtedness of Lewis to the bank. But if it be true that all three were left as collateral (and the testimony of Messrs. Lewis and King is uncontradicted as to that), then the right of the bank to a priority in any fund derived from the mortgaged property, if it had been sold, might have been asserted on either of two grounds — notwithstanding two of the single bills were not endorsed. In the first place, when a mortgagee assigns one of three notes, or single bills, secured by one mortgage, and delivers the other two, although not endorsed, to the assignee as collateral, that of itself is some evidence of the intention of the mortgagee to give the assignee of the one priority over the others, if the fund derived from the mortgaged property prove to be insufficient to pay them in full. It is true that a mere assignment of one note does not give the assignee priority over others retained by the mortgagee, as was held in Brown, Trustee, v. The Freestone M. & M. Co., 55 Md. 547, and other cases in this State; but in Chew v. Buchanan, 30 Md. 367, in discussing the question of priorities, the Court said: “ Where the meaning of the parties has been expressed, or can be inferred from their acts, there has been no difficulty in disposing of the question;” and in Dixon v. Clayville, 44 Md: 573, the rule laid down in Donly v. Hays, 17 Serg. & Rawle, 400, was adopted. It was there said that “ different parties holding respectively the several notes, or being entitled to the several instalments or portions of the debt secured by one mortgage, unless there be something in the terms of the contract to indicate a different intention, stand in equali jure," and again that “ the exception or qualification to this rule is where the assignor by guarantee or otherwisef becomes liable to the assignee for the payment of the installment, or part of the debt assigned. In such case the assignor, if he continues to hold the other portion of the debt, would not be allowed to participate in the fund until the installment due the assignee is fully paid. The effect *295 of a contrary rule would be to lead to a mere circuity of action.” In this case the assignor, Lewis, was liable on the notes, which were given instead of the single bill which he intended to have discounted. It was all one transaction, and even if he had retained in his possession the two single bills, and the mortgaged property had been sold, and the proceeds had proven insufficient to pay the three in full, it would certainly have led “to a mere circuity of action ” to permit him to receive a distribution on the two and require the bank to sue him for the balance due it, but the proof is conclusive that it was the intention of the parties to assign as collateral the whole of the indebtedness secured by the mortgage. His act in giving the two, though unendorsed, to the bank, was as distinct a declaration that the one endorsed was to have priority over them as if he had entered into a written agreement to that effect. Again, a written assignment was not necessary but the mere delivery of a bond and mortgage as security is a valid pledge and will be so treated in a Court of Equity. Crane v. Gough, 4 Md. 334; Kamena v. Huelbig, 23 N. J. Eq. 78; Galway v. Fullerton, 17 N. J. Eq. 389; Prescott v. Hull, 17 Johns. (N. Y.), 284; Runyan v. Mesereau, 11 Johns. (N. Y.), 534; 18 Ency. of Law, 650. So on either ground the assignment of the one single bill and the delivery of the other two as collateral security, were sufficient to entitle the Pocomoke Bank to the benefit of any fund that could have been realized from them, to the extent of the debt for which they were pledged. Independent of the Act of 1892, chap. 392, the assignment of the one single bill with the priority we have said was given, or of the three in the way we have stated, carried with it the mortgage and gave the bank the benefit of that lien. Demuth v. Old Town Bank, 85 Md. 323, and other cases there cited. But it is said that the Act of 1892 is applicable, and therefore Lewis was conclusively presumed to be the owner of the mortgage after maturity. That Act provided that the title to notes and other instruments *296 secured by mortgages shall, after the maturity of such notes, etc., be conclusively presumed to be vested in the person holding the record title to the mortgage, and if the mortgage is released of record, the notes, etc., secured by it, shall, after their maturity, be conclusively presumed to be paid, so far as any lien upon the property conveyed by the mortgage is concerned. The object of the Act was to avoid the complications that often arose by reason of the fact that the release of a mortgage by the mortgagee was not valid, unless he also owned the eviednces of debt secured by it, and hence it often left the titles to the mortgaged property involved, as the ownership of the evidences of debt was not necessarily, or usually, a matter of record. But without stopping to discuss the effect of that Act, under such circumstances as we have before us, if the mortgage had been recorded in this State on property located here, is it applicable to this case ? The mortgage was not recorded in this State but in the Custom House at Washington, District of Columbia. It can make no difference that the negotiation took place here, for if it was necessary to record the assignment, of course it must have been recorded where the mortgage was recorded, and could not have been elsewhere and accomplish what the law was designed to do. Although this mortgage was doubtless recorded under the Act of Congress applicable to bills of sale, mortgages, etc., on vessels, the question has been argued as if it had been recorded under the laws of the District of Columbia, and there is no evidence as to what the law is in the District. The authorities are not uniform as to whether the Courts of one State will presume, in the absence of anything to the contrary, that a foreign State has adopted the same statute that is in force where the case is pending. But it would be carrying such presumptions to an unreasonable extent to presume, without any proof to that effect, that there is a statute similar to the Act of 1892 in force in the District of Columbia, even if it be assumed that the mortgage was recorded under the laws in force there. That statute made a complete *297 change of the law on the subject in this State. Prior to its passage the mortgage followed the debt secured by it, and became the property of the owner of the latter, but since then the debt, after maturity, follows the mortgage and is conclusively presumed to belong to the person holding the record title to the mortgage. Until 1892, if the question had arisen in this State, in the absence of proof to the contrary, it would have been presumed that the owner of the single bills was the owner of the mortgage, for that was and always had been the common law of this State, and the common law would have been presumed to be in effect in the District, and must it now be assumed that the Congress of the United States passed a statute for the District similar to ours, contemporaneously with it, although the contrary was presumably the law in the District for the previous hundred years ? When a statute thus radically changes the common law of one State, there is no good reason to presume that the Legislature of another State has done likewise. In State, use Allen v. C. & P. R. R. Co., 45 Md. 41, this Court, after stating that the presumption is that the common law prevails in the State where the alleged wrong was done, quoted with approval from Whitford v. Panama R. R. Co., 23 N. Y 468, that '• no such presumption obtains respecting the positive statute law of the State. There is, generally, no probability, in point of fact, and there is never any presumption of law, that other States or countries have established, precisely or substantially, the same arbitrary rules which the domestic Legislature has seen fit to enact.” This Court, through Judge Alvey, added, “ this presumption, as to the prevailing existence of the common law, is indulged upon principles of comity and general convenience; but the Courts here will never apply to acts done in a foreign jurisdiction, which may not be unlawful there, the arbitrary rules that shall have been prescribed by our Legislature, with respect to rights and remedies, wholly at variance with the settled rules of the common law.” See *298 also Kelley v. Kelley, 161 Mass. 111; Ellis v. Maxson, 19 Mich. 186; McCullock v. Norwood, 58 N. Y. 564; Harris v. White, 81 N. Y. 532. Other authorities might be cited) but we think it clear that the Legislature only intended this Act of 1892 to apply to mortgages recorded in this State, as it could control no others, and that there can be no présumption that a similar statute was in force in the District of Columbia. But, as we have already intimated, we do not understand from the evidence before us that the mortgage was recorded in the records of the District of Columbia, but only at the Custom House, under the laws of the United States applicable to bills of sale, mortgages, etc., on vessels. We take judicial notice of Act of Congress of such public character (12 Ency. of Law, 155; Easterwood v. Kennedy, 44 Md. 563), and are not aware of any such statute similar to ours. If this were not so, we certainly would not presume that Congress had passed such a' law, merely because our Legislature saw fit to radically change the law that had previously been in force here. So we cannot apply the Act of 1892 to this case, but must treat the Pocomoke Bank as the bona fide holder of the single bills (undoubtedly of the one with priority over the others, and in this case that is immaterial, as the one more than covers the amount realized), and the owner of the mortgage, so far as necessary for the protection of the debt due the bank. That being so, what interest did that bank acquire in the' insurance policies ? “ Insurance policies may be pledged with or without a written assignment.” 18 Ency. of Law, 651, and cases cited in note 2; Colebrooke on Collateral Securities, 712. Delivery alone will at least give an equitable title to the pledgee. Soule v. Union Bank, 45 Barb, III; Chapman v. McIlwrath, 77 Mo. 38. The mortgage required the insurance to be taken and the policies were a part of the security given. It has been suggested that they prohibited assignments without consent of the companies. The companies might not have raised that objection to the validity of the policies, but if they had, it would have been *299 of no avail, as such provisions do not apply to pledges. 7 Ency. of Law, 1026; Ellis v. Kreutzinger, 27 Mo. 311; True v. Manhattan F. Ins. Co., 26 Fed. Rep. 83 ; Griffey v. N. Y. Central Ins. Co., 100 N. Y. 417; Colebrooke on Col., sec. 712. See also Judge Miller’s opinion in Washington Fire Ins. Co. v. Kelley, 32 Md. 457. So, up to the time of the fire the Pocomoke Bank held at least an equitable interest in the single bills, the mortgage and the insurance policies, and if there was any question about the right of Lewis to assign the policies before the fire, there can be none about such right after the fire took place. 7 Ency. of Law, 1025, and notes; Consolidated R. E. & F. Ins. Co. v. Cashow, 41 Md. 78; Whiting v. Independent Mutual Ins. Co., 15 Md. 313. The bank still held them and if the assignments had been previously ineffective, by reason of the prohibition against assignment without the consent of the insurers, surely a Court of Equity should treat them as valid when Lewis was authorized to make them. That was before the appellants even claimed to have secured any interest in them. They were then choses in action and an equitable assignment of them could be made by parol. Crane v. Gough, stipra. Did the bank’s subsequent conduct cause it to lose the benefit of them? As we have seen, on February 21, 1895, it sent them to Lewis for the purpose of letting him collect the money due, out of which he was to pay the bank. At that time only about five thousand dollars was due by Lewis to the bank, and the policies amounted to over thirty thousand dollars. The surrender of the policies under the circumstances did not terminate the pledge, as they were sent to Lewis for the express purpose of collecting the money to pay the bank. Citizens’ Bank v. Hooper, 47 Md. 88. But after he got possession of them he undertook to give other parties interests in them without informing them of the Pocomoke Bank’s claim. Charles E. Dickey testified that on the 27th of February, 1895, his firm made a contract with Lewis for the delivery of one million 3-pound *300 . cans at eighteen dollars per thousand, in March, April, May and June; that the terms of sale were one-half cash and one-half on the first of November; that Lewis stated to him at the time that he had a claim of thirty thousand dollars against insurance companies “ for loss of a steamboat or something or other, out of which money he expected to pay one-half of his bill of cans in cash payment,” and that the matter was in the hands of E. B. DuVal & Company, through whose hands the money was to come; that on seeing Mr; DuVal he confirmed it. Just when he saw DuVal is not clear. The inference to be drawn from DuVal’s evidence is that it was not until the day of the assignment in October, 1895. The testimony does not satisfactorily show the exact time that Lewis placed the matter in the hands of DuVal. He had on March 1, 1895, given James V. Wagner a power of attorney to settle, adjust, demand and receive the money on the policies, and it was not earlier than March the 7th that DuVal got the policies. He testified that it was either that or the next day, whilst Mr. Littig said they were not delivered until after the 15th of March, 1895 He certainly did not have them as eaidy as February 27th, and the first power of attorney Lewis gave him was dated the 14th of March, 1895, and the Transportation Company gave him one dated the 15th of that month. Lewis executed another to DuVal on the nth of October, 1895, and on the 18th of that month executed an assignment of all his interest as mortgagee of the steamer “ Lady of the Lake,” with authority to pay out of the proceeds, (a) DuVal’s account against him, ('b) the Second National Bank of Baltimore, (c) the Maryland Meter and Manufacturing Company, (d) the Marine Bank and Merchants’ Bank, pro rata, for any deficit in their claims not secured by certain life insurance policies, and (e) the balance to Lewis. It cannot be pretended that there was any actual assignment for the benefit of the appellants before the 18th of October, 1895, and the evidence of Mr. Dickey falls far short of establishing any lien, legal or *301 equitable, on this insurance fund in February, 1895. It was a mere promise to pay on the part of Lewis and a statement by him as to where he expected to get the money with which to make the cash payment. Nor can it be said that the failure of the Pocomoke Bank to have the policies endorsed to it could have misled Mr Dickey when he made the contract for the cans with Lewis, for there is not the slightest evidence that he saw the policies then, or even afterwards, and hence could not have been misled by their contents. Nor has the Second National Bank any claim, excepting what it acquired through the assignment of October 18th. The power of attorney and the assignment to DuVal show on their face that Lewis’ interest was merely as mortgagee, and indeed DuVal had procured the policies which had the endorsement on them for the benefit of Lewis, mortgagee. He originally obtained the insurance on the steamer for Lewis when he owned it, and then had the transfers made (including some new policies) when the Transportation Company purchased it. DuVal was, therefore, fully cognizant of the fact that Lewis’ interest was only as mortgagee. It was clearly his duty to ascertain what the mortgage contained, and if he had, he would have seen that it secured three single bills, the ownership of which he should have traced, if he wanted to ascertain what Lewis’ interest was. As the appellants can only claim through the assignment to DuVal, they are bound by his knowledge, and, moreover, he showed the assignment to Dickey, Tansley and Company. Considerable stress is laid on the fact that that firm had arranged security for costs to prevent the suits from being dismissed. That was a very natural thing for them to do. They not only supposed they had an interest in the suits, but they actually did have, for if the plaintiff had recovered what was due on the policies they would probably have been paid all that he owed them. But that act can give them no claim on this fund, as they lost nothing by it. The suits were brought in the name of Lewis and the fees and costs *302 connected with them have been paid. It cannot even be assumed that the officers of the Pocomoke Bank would have refused to aid in the suits if they had been called upon. Mr. King testified that he did not know of any attempted assignments of the policies by Lewis until sometime in 1896, when he at once communicated with Messrs. Baldwin and Boston and others. He had confidence in Lewis and doubtless believed that he would pay the amount due the bank out of the proceeds of the policies, as he had undertaken to do, until he ascertained that he had been attempting to dispose of the policies to others. His statement in answer to a question on cross-examination explained his position. He said, "we still held the notes of the People’s Transportation Company, Washington, D. C., notes heretofore referred to, and as they represented the only interest that Charles R. Lewis had in these insurance policies, I -thought we would be reasonably safe in granting his request to send him the policies.” So without discussing all the questions suggested, we are of the opinion that the appellants had no claim, legal or equitable, to these policies or the funds to be derived from them, excepting such as they acquired through the assignment to DuVal (which was long after Lewis became indebted to them) and they took that subject to the prior claim of the appellee. The evidence shows that the collaterals were not only to protect the bank, as holder of the notes, but Franklin C. Lewis as endorser, and, in so far as he has paid any part of the claim to the bank, he is entitled to be subrogated, as there is no evidence that he was the partner of C. R. Lewis, or in any way interested, excepting as an accommodation endorser. Of course his claim is subject to that of the Pocomoke Bank. The only other question that we are called upon to discuss, in addition to the costs of the case, is the part of the decree that provides for the payment of DuVal’s claim for services rendered and money expended by him in connection with these policies. The effect of that part of the de *303 cree is to make the beneficiaries under the assignment of October 18, 1895, pay for all expenses incurred in securing this money. That we do not deem equitable. The appellants had no knowledge of the claim of the Pocomoke Bank when the settlement was made, and it is possible that if they had had, and if they supposed such costs as these were to come out of the fund-, at their expense,'they would not have consented to a settlement on the terms that the suits were compromised for. DuVal can only be allowed anything on the theory that his services and the money were necessary, or at least contributed to the recovery of the fund. Without his aid, possibly, nothing would have been recovered, as he aided in the preparation of the proofs of the loss and getting evidence that was material. Under such circumstances it is not right that the Pocomoke Bank should not only not be at any expense itself, but even require others to expend their money for its benefit, as that is practically what is done if the fund which would otherwise go to the appellants must pay for DuVal’s services. We cannot in the present condition of the record determine what compensation should be allowed to DuVal under this clause of the decree, and we do not want to be understood as intimating that we think he should be allowed such an amount as is claimed by the account he has filed. On its face it appears out of all proportion to the results and some of the items do not seem to be covered by this provision of the decree, but the Court below authorized the taking of additional testimony before the auditor for the purpose of establishing the amounts of the respective claims, which can still be done when this cause is remanded. Whatever this claim of Du-Val is determined to be, it should be paid proportionately by the parties entitled to the fund. The costs, including those in this case and the amount retained by Messrs. Baldwin and Boston ($1,888.88) for fees, expenses, etc., should also be paid by the parties in proportion to the amounts they would receive, were it not for the costs and DuVal’s preferred claim. This we deem equitable and in accordance *304 with the general principle stated in Tome v. King, 64 Md. on page 182. They were, presumably, necessarily incurred and all the parties should contribute to them. For illustration take the amount of the fund recovered, $8,500, out of which (excluding the costs and DuVal’s -preferred claim) assume there would be due the Pocomoke Bank $4,000, F. C. Lewis $600 and the - parties under the assignment of October 18th, 1895, $3,900, and that the costs (including amount retained by Messrs. Baldwin and Boston) and Du-Val’s claim, entitled to preference under the decree, would together amount to $3,400 or 40 per cent, of the whole. There should be distributed to the costs and DuVal (of course separating them) $3,400, to the Pocomoke Bank $4,000, less its proportion of the costs and. DuVal’s claim (40 per cent.) which would be equal to $1,600, leaving due it $2,400 and so on with the others. We do not want to be understood as fixing the above amounts as due the respective parties, but only use those figures for illustration. (Decided April 5th, 1899). It follows from what we have said that the decree must be affirmed in part and reversed in part, and the cause remanded, so that an audit can be stated in accordance with this opinion. Appeal from the order dismissing the petition of October 2j, i8p8, dismissed and the decree of the 12th day of November, i8p8, affirmed in part and reversed in part, and cause remanded, the costs above and below to be paid out of the fund as directed in the opinion.