Thos. Wilson & Co. v. Thos. J. Carson & Co.

Le Grand, C. J., delivered the opinion of this court. This is an attachment on warrant, which, on the 3rd day of January 1854, issued out of the Superior Court of Baltimore city, at the suit of Thomas Wilson & Co., against the effects of Ezra Webb, Wm. Maxcy and Thomas G. Rowland, copartners, trading under the firm of E. Webb, Maxcy & Co., to recover a balance on account, due 26th of November 1853, of 04847.96. On the 4th day of January 1854, the attachment was laid in the hands of the garnishees. The garnishees pleaded non assumpsit and nulla bona. All the members of the firm of Webb, Maxcy & Co., together with William Teeter and E. Lewis Stoll, composed the firm of Teeter, Maxcy &. Co., of Louisville, but neither Teeter nor E. Lewis Stoll were of the firm of E. Webb, Maxcy & Co. Both firms failed in — 72 — business, and, on the 31st day of December 1853, all the members of both firms united in a deed of trust to William Riddle, of Louisville, conveying a large amount of real estate in Kentucky, belonging to William Maxcy, individually, also his household and kitchen furniture; a considerable amount of real estate in Kentucky, belonging to T. G. Rowland, also certain personal property also belonging to him, individually; all the estate of Wm. Teeter, real, personal and mixed; certain property, real and personal, belonging to E. Lewis Stoll; the warehouse furniture of E. Webb, Maxcy <fc Co.; also certain accounts, debts, rights, dioses in action, and personal property set out in paper marked M., No. 1, which is made part of the deed. This paper specifies the lard, pork, &c., which had been shipped to T. J. Carson & Co., of Baltimore. This conveyance was one in trust for the benefit of creditors, after paying certain expenses, according to the order specified in it. It provides that the transfer, in the deed, of the claim on Carson &. Edes, and T. J. Carson & Co., and Lees & Walter, is subject to drafts and assignments by the grantors, previously given: 1st, to Gill, Anderson & Co.; 2nd, to Walters & Fox; 3rd, to Parmelee & Bro.; 4th, to Smith, Clark & Logan; and 5th, to B. & L. Leavell, and Conn & Ramsay. It was admitted that neither of the defendants were citizens of Maryland at the time of the issuing of the attachment, nor were they at the date of the execution of the deed of trust of the 31st day of December 1853. It was also admitted, that at the time the attachment issued and was laid, there was a large amount of property, consisting of pork, lard, bacon, and other provisions, in the hands of Thomas J. Carson & Co., in Baltimore, which had been consigned to them for sale, by E. Webb, Maxcy & Co., of Louisville, the defendants; and that afterwards, and before the garnishees pleaded, there accrued from the sale of said property, over and above all advances, the amount of $12,805. The amount of assignments specifically made of this fund by the orders of date the 30th day of December 1853, and recognized in the-deed of trust of the following day, is $28,714.42. The correctness of the claim of the plaintiffs below is not — 73 — questioned. The questions we are called upon to determine, grow out of tire orders of assignment, the deed of trust, the proof of the laws of Kentucky, and the levying of the attachment. If the assignments given on the 30th of December, be valid, and bind to their amount any balance of the proceeds of the sales of the consignments to the garnishees, then it is clear the plaintiff’s could not recover in this action; those assignments being largely beyond, in amount, any fund in the hands of the garnishees to meet them. On the part of the appellants, it was insisted, that the property attached, being in specie, in the hands of the garnishees, in Maryland, at the time the attachment was laid, and the garnishees having so continued in possession, their possession was the possession of the defendants, and could only be changed either by actual transfer to an assignee, or by deed executed and recorded according to the laws of Maryland, or actual notice to the garnishee. That if considered as a chose in action, the title of the assignee was merely inchoate until actual notice to the garnishees, and the property in the hands of the garnishees, over their advances, at the time of laying the attachment, was the property of E. Webb, Maxcy & Co., and the plea of nulla bona was not sustained by proof of the assignment, without actual notice to the garnishees, prior to the attachment. It appears from the letter of the plaintiffs, of date the 4th of January 1854, that they had, at that time, knowledge an assignment had been made by the defendants; it does not, however, appear they were acquainted with its precise char-, acter. The letter of Carson & Edcs, of the 6th of January 1854, is the only evidence of the time when they first acquired knowledge of the fact that Mr. Riddle had been appointed assignee, and this letter shows that the attachment of the plaintiffs bad been previously levied, of which it notifies Mr. Riddle. Although it is stated, in the admitted statement of facts in the record, that Joseph Carson, one of the garnishees, was in Madison, Indiana, at the end of the month of December, it nowhere appears he either had knowledge of the orders or of — 74 — the deed, or assented to either. We cannot infer such knowledge or assent on his part. The several orders given by the defendants, are, in language, substantially the same. The one in favor of Messrs. Parmelee &• Bro., is as follows: “Louisville, December 30th, 1853. Messrs. T. J. Carson & Co. Gentlemen: — When in funds from sales of our various shipments, to your houses in New York and Baltimore, of hog product, please pay to Messrs. Parmelee & Bro. the sum of ten thousand dollars, should the balance that may be coming to us amount to that sum, and oblige,” <fcc. The case of Tiernan, et al., vs. Jackson, 5 Pet., 580, was this: A shipment of tobacco was made at New Orleans, by the agent of the owner, consigned to a house in Baltimore, the shipment being for the account and risk of the owner, he being at the time indebted to the consignees for a balance of account. The owner of the shipment drew two bills on the consignees, and on the same day made an assignment on the back of a duplicate invoice of the tobacco, in the following words: “I assign to James Jackson (the drawee of the bills) so much of the proceeds of the tobacco alluded to in the within invoice, as will amount to two thousand four hundred dollars, (the amount of the two bills,) to J. and L. six hundred dollars, &c., and Messrs. Tiernan & Sons (the consignees) will hold the net proceeds of the within invoice subject to the order of the persons above named, as directed above.” The court, after a most elaborate argument at the bar, by able counsel, held, that this assignment, by its terms, did not pass the legal title so as to authorize the assignees to sue in their own names, and fully endorsed the doctrine laid down in Mandeville vs. Welch, 5 Wheat., 277, 286, where it was said, that in cases where an order is drawn for the whole of a particular fund, it amounts to an equitable assignment of that fund; and, after notice to the drawee, it binds that fund in his hands. But where the order is drawn either on a general or particular fund, for a part only, it does not amount to an assignment of that part, or give a lien as against the drawee, unless he consents to the appropriation — 75 — by an acceptance of the draft, or an obligation to accept may be fairly implied from the custom of trade, or the course of business, and that until the parties receiving a consignment or a remittance, under such circumstances, had done something recognizing the appropriation of it to the particular purposes specified, and the persons claiming had signified their acceptance of it, so as to create a privity between them, the property and its proceeds remained at the risk and on the account of the remitter or owner. The same doctrine was held by the Court of Appeals of this State, in the case of Eichelberger & Erskine vs. Murdock, 10 Md. Rep., 396. There is not a particle of proof, in the record, that the garnishees ever agreed to the appropriations made by the orders of assignment of the defendants. We think, so far as proof of the law of Kentucky is concerned, the court below correctly stated the law. The case of Gardner vs. Lewis, 7 Gill, 377, and of Thrasher vs. Everhart, 3 G. & J., 242, are sufficient to show, in a case like the present, that the evidence of a foreign law is for the court. The two witnesses examined in regard to the matter, are, in our judgment, sufficiently explicit; they, in substance, say, (they being lawyers,) they are of opinion that the clauses and provisions in the deed of trust, according to the laws of Kentucky, are legal, and sufficient to convey to the grantee the property set forth therein, and that they know of no statute of Kentucky affecting that opinion, or bearing on the point. Opinion is belief, and nothing more; it is not absolute certainty, nor does the law require it to be so. If the reputation and professional standing of the two witnesses who were examined on this subject, were such as not to entitle them to credit, then, in that case, the fact should have been shown. They are wholly unimpeached, and, therefore, entitled to credit. Although we deem the proof of the law of Kentucky sufficient, it does not therefore follow, necessarily, that we are to give it full effect in Maryland. The recognition of the laws of another State, in the administration of justice in this, is not a light stricti juris; it depends entirely on comity, and, in ex — 76 — tending it, courts are always careful* to see that the statutes of their own State are not infringed, to the injury of their own citizens. The citations from Justice Story's work on the Conflict of the Laws, made in the opinion we have referred to, in 7 Gill, are sufficient to establish the proposition we have stated. The question, then, is, is the deed of trust of the 31st of December 1853, so violative, if at all, of the statutes or policy of this State, as to make it null and void in this case? This inquiry is wholly aside of the doctrine recognized in some of the States, to wit, that a citizen of a State to whose forum application is had for the enforcement of the provisions of the deed, will not be compelled to resort to that of a State in which the deed was executed, but will be allowed the advantage of whatever lien his diligence may have given him on the property of his debtor, within the State of his own residence. This principle has been acted upon in Massachusetts, Yermont and Maine. We know of no reason why the deed of the 31st of December 1853, should not operate in this case; the only one which has been suggested, is that arising out of the act of 1729, ch. 8, sec. 5. It is supposed that, inasmuch as the deed was not recorded within twenty days from its date, it can have no influence prejudicial to claim of appellants. In this view we do not concur. That section provides, that “no goods or chattels, whereof the vendor, mortgagor or donor shall remain in possession, shall pass, alter or change, or any property thereof be transferred to any purchaser, mortgagee or donee,, unless the same be in writing, and acknowledged before one provincial justice, or one justice of the county where such seller, mortgagor or donor shall reside, and be, within twenty days, recorded in the records of the same county.” The preamble to this section of the act, shows that its purpose was designed to guard against conveyances of goods “secretly" made for the benefit of children, or pretended creditors, whilst the donor or mortgagor was left in the enjoyment of the same. It is clear, to our minds, it was not intended to apply to the case of a deed or bill of sale made in. another State than Maryland. It can only, by its terms, eln — 77 — brace such instruments as are made within the limits of Maryland, because the recording which it requires is to be made in the county where the seller, donor or mortgagor “resides." It is the universal law, that the situs of personal property is the domicil of the owner. In this caáe it was in Kentucky, and not in Maryland, and, therefore, to be determined by the law of the former, and not by that of the latter. To make the act of 1729 applicable to a case like the present, would, in fact, be to declare it incompetent to a person residing in England, or in any other distant country, to dispose of property in Maryland, for, in such situation of parties, it would be next t.o, if not quite, impossible, to record within the twenty days, and absolutely so within the county, for the foreign owner would not “reside" in any county within the State. We have alluded to certain principles of law to guard against misapprehension hereafter, when a case shall arise to which they may be applicable, and to provide against the inference that this court is, in all instances, to recognize in the broadest sense the laws of other States, when properly adduced before it. But the case now under consideration, we regard as having been conclusively settled by the decision in the case of Houston vs. Nowland, 7 G. & J., 480. In that case the debtor resided in the State of Delaware, having property in Maryland. He executed a deed in conformity to the laws of Delaware, for the benefit of his creditors. It was not executed, acknowledged and recorded, so as to convey real estate in Maryland. After the execution of this deed, a creditor of the grantor, residing in Maryland, sued out an attachment, and had it laid on certain lands and certain credits. The judgment below was rendered for the garnishees, and this court affirmed that judgment, on the ground that although the deed did not per se convey real estate in Maryland, because not, executed, acknowledged and recorded, in conformity to its requirements, yet it did transfer the title to the credits, and, therefore, the attachment could not be sustained. The only question which the court made in regard to the efficacy of the deed, was, that it Was not executed, &c., so as to pass real estate; in regard to the other property, there was no difficulty, — 78 — the instrument was deemed all sufficient. This case we hold to be decisive of the one now before us. In the argument, the court had presented to its consideration the case of Ingraham vs. Geyer, 13 Mass., 146, wherein it was held, that a deed executed in Pennsylvania, conveying property for the benefit of creditors, was void in Massachusetts as against an attaching creditor. In the Massachusetts case, the doctrine of comity was disallowed, in aid of the deed as against the attaching creditor. We are, therefore, bound to consider that case as not endorsed as applicable to one like the present. In addition to the authority of the case of Houston vs. Nowland, we refer to that of Black, et al., vs. Zacharie & Co., 3 How., 483, which held, a transfer made in South Carolina, of stock in a corporation in Louisiana, to operate to defeat an attachment, sued out in the latter State by the creditor of the person making the transfer, the attaching creditor having knowledge of the transfer at the time of suing out his attachment. It is manifest the plaintiffs had knowledge that an assignment had been made when they sued out their writ of attachment. Their letter, dated the 4th of January 1854, shows this. (Decided June 2nd, 1858.) Entertaining these views, we affirm the judgment below, regarding the law, as expounded by the Superior Court, as all that the plaintiffs were entitled to. The prayers which were rejected, were, for the reasons which we have assigned in treating of the principles governing the circumstances of this case, properly refused. Judgment affirmed.