Fouke v. Fleming

Eccleston, J., delivered the opinion of this court. In this case an attachment was issued, at the instance of theappellees, out of the Circuit court for Washington county, in March 1857, against Israel Russell, and was laid on two canal-boats. — 403 — The attachment being returned, Isaac Fouke, the appellant, appeared as claimant of the property attached, asserting his claim, under a deed made to him by said Russell, prior to the issuing of the attachment. At the trial, in support of his claim, the appellant offered the deed from Russell, bearing date the 30th of January 1857, for the two canal boats, and other articles of personal property. It was recorded in one of the land record hooks of Washington county, Maryland, on the day of its date, after it had been acknowledged by Russell, on the same day, before a justice of the peace of the State of Maryland, in and for Washington county: the signing, sealing and delivery of which deed were admitted by the plaintiff. And, by agreement of the parties, the same was read to the jury, subject to all objections as to its admissibility and legal effect and validity, to be raised by prayers. It was agreed that, the debt, for which the attachment, issued, was due and owing before, and on the day of the date of the deed, and also at the time of the issuing of the attachment; that the writ of attachment states the correct, amount of such indebtedness; and further, that Israel Russell, the defendant, was, at the time of issuing the attachment, a resident and citizen of the State of Virginia. It was admitted that the property attached is the same, or part of the same, mentioned in the deed, and that the attachment proceedings were regular. At, the instance of the plaintiffs’ counsel the courCgavc the following instruction: “That, the said deed of assignment offered in evidence, and read as aforesaid, is void in law as against the plaintiffs, if the jury find, that the said Israel Russell, the assignor, was, at the time of making said assignment, indebted to the said plaintiffs on tiie claim for which the attachment, issued in this cause.” To the granting of this instruction the claimant, Fouke, excepted, and upon the rendition of the verdict and judgment against him, he appealed. The question to be decided is, whether the deed from Russell to Fouke, transferred to the latter such a title to the pro — 404 — perty in dispute, as should have prevented a judgment of condemnation thereof, under the attachment; or in other words, whether the deed was void as against the appellees. They insist 'that it is, and in support of this position they rely upon the principles established by the following cases: Green & Trammell vs. Trieber, 3 Md. Rep., 11. Sangston vs. Gaither, 3 Ibid., 40. Malcolm vs. Hodges, 8 Ibid., 418, and Inloes vs. American Exchange Bank, 11 Ibid., 173. In Green & Trammell vs. Trieber, the grantor’s deed included all his property, and he was insolvent at the date of the deed. He “reserved to himself the possession and enjoyment of all his property for at least six, perhaps for twenty-four months, and, indeed, for an indefinite time, if the trustees should not think proper to sell, and none of the preferred creditors should require the sale to be made. He also reserved to himself the surplus, after payment of the claims of the assenting creditors, and of Brady, (whose assent was not required,) to the exclusion of all other creditors, who could, in no event, obtain any part of their claims by the provisions of the deed, and these benefits, confined as they were to such of the named creditors as might assent, were extended to them only on the condition that they would, while the debtor was using and enjoying the property, grant further time on their claims against him.” In Sangston vs. Gaither, the deed recited the indebtedness of the grantor to various firms and persons, and his desire to provide for paying the same. It conveyed the property, in trust,’^to be distributed to each creditor who should elect, within sixty days from the date of the deed, to come in and share in the trust, and should also file a sufficient release to the debtor, with the trustee, (and no other creditor whatsoever,) such a dividend of the assets as he should be found entitled to, in the proportion of the whole of the debts thereinbefore scheduled, to the whole amount of the nett assets. And the deed also provided, that the dividends, or proportions which would have been payable to such creditors, if any, as should not have released, should be retained by the trustee in such distribution, and paid over to the grantor, leaving such — 405 — creditors to their ordinary legal remedy against him. The surplus, if any, “after paying the debts aforesaid,” was to be paid to the grantor. In that case it. did not plainly appear whether the deed was an assignment of all the debtor’s properly or not. And there, as in a former casej the court said, “that an assignment for the benefit of creditors, exacting releases as the condition on which they might participate in the fund, must transfer all the debtor’s estate.” Nevertheless there the deed exacted releases, and also reserved to the debtor the dividends of such creditors as might neglect or refuse to execute releases. He likewise reserved to himself any surplus which might remain after satisfying the creditors named in the deed. See pages 46, 48 and 49 of 3 Md. Rep. In Malcolm vs. Hodges, the deed professed to convey all the estate and effects of the grantors, in trust for those of their creditors, who should, on or before a certain day, sign a release to the debtors, from all their individual and co-partnership liabilities to the said creditors. It was held, that such a deed “must not only convey all the property of the debtor, but must, in terms, dedicate the whole for the benefit of th© creditors, subject to such preferences as might be declared in the deed. And there must not be any reservation to the debtor, express or implied.” Inasmuch as the deed expressly restricted the application of the trust funds for creditors, to those creditors only who might come in within a certain time and execute releases, and nothing being said in regard (o any surplus, the surplus, if any, would result, to the debtor. The deed was, therefore, considered void, because there was an implied reservation of such surplus to the grantor. In Inloes vs. American Exchange Bank, the provision which avoided the deed was that which gave the trustee power, at his discretion, to sell the property conveyed by the deed, consisting of a stock of goods in trade, “gradually in the manner and on the terms in which, in course of their business,” the grantors “-had sold and disposed of their merchandized In reference to the deed before us there is nothing from — 406 — which we can consider it to be a general assignment of all the grantor’s property, for the benefit of his creditors generally, or that he was in insolvent circumstances. It exacts no releases, nor does it reserve the property for his use and enjoyment, either for a short or long period of time, but gives authority to the trustee “to sell and dispose of the same at public or private sale, and upon such terms and notice as he may deem most expedient.” Instead of regarding this, (as insisted upon by the appellees,) a deed of trust or assignment for the creditors generally, of the grantor, it is, in our opinion, simply a deed of trust, or quasi mortgage, designed to secure the payment of a few specified debts due to the firm of Hartley & Brother, and to two individuals, Abraham Herr and Samuel B. Preston, and also to indemnify and save harmless Joseph L. Russell, and Jonathan Russell, as the sureties of the grantor for some of those debts. In Green & Trammell, vs. Trieber, the court say: “We must observe the distinction between conveyances of the whole or a part of the debtor’s property, as a security for particular debts, on an agreement with the creditors for further time, and voluntary conveyances by debtors for the payment of their debts.” Believing this to be a conveyance, designed only “as a security for particular debts,” and not a voluntary conveyance by a debtor for the payment of his debts generally, and regarding it as a quasi mortgage, as has been previously said, we do not think that a reservation of the surplus to the grantor, after paying those particular debts, can render the deed void. Such a reservation will secure to the debtor nothing more than he would be entitled to in the case of a technical mortgage, if the mortgaged property should be sold for payment of the mortgage debts, leaving a surplus of proceeds of sale beyond the amount required to satisfy the mortgagees’ claims. Nor do we perceive in this conveyance any defect, making it void, upon the principles established by-the decisions in the cases referred td, and much relied upon by the counsel for the appellees, as showing this deed to be void. It differs, essentially, from each of the deeds held to be void in those cases. — 407 — The validity of the deed has been objected to, because the grantor was a citizen and resident of Virginia, at the date of it; because it was executed and acknowledged before a justice of the peace of the State of Maryland, in and for Washington county, and recorded in said county, the property included iu the instrument, and now in dispute, being then in that county. The appellees say, this being personal property, and the grantor a resident of Virginia, the law of that State must prevail. But this cannot be true, when there is no proof of what is the law of Virginia on the subject; and, in the absence of such proof, we must be governed by our own law. The act of 1856, ch. 154, sec. 129, provides, that “A bill of sale, if acknowledged within the State, may be acknowledged before any one justice of the peace, or judge of the orphans court, of the county or city in which the vendor resides.” The next section says: “If acknowledged out of the State, before any officer authorized to take acknowledgments of deeds.” Section 131 says: “Bills of sale shall be recorded in the' county or city where the vendor or donor resides, within twenty days from the date.” Section 142 provides, that “Mortgages of personal property shall be acknowledged and recorded in the same manner as bills of sale.” Supposing the Maryland law to prevail, then the counsel for the appellees says, the instrument under consideration, if either a bill of sale or mortgage of personal property, it was neither acknowledged nor recorded, according to the requirements of the act just referred to. It was acknowledged and recorded in this State, but not in the county where the vendor, grantor or mortgagor resided, and could not be, because he' resided in Virginia. This defect, it was contended, must render the instrument inoperative as against the attachment. The question presented is, if a citizen of a sister State, residing therein, having personal property in Maryland, and being here temporarily, executes and acknowledges a conveyance of the property in? the county where it is, at the time, and the conveyance is there recorded within twenty days from. — 408 — its date, is sucii an instrument valid as against an attaching creditor of the grantor, in the absence of any proof of the laws of the sister State, making the conveyance otherwise? We think it is. In saying this we must not be understood as holding, that if a citizen of this State were to acknowledge and have recorded a similar conveyance, in a county where he did not reside, it would be valid. Sim and Lee’s Lessee vs. Deakins, 2 H. & McH., 46, was an ejectment for two tracts of land lying in Washington county. A deed for those lands, to the lessors of the plaintiff, from Jeremiah Warder,'of Philadelphia, was offered in evidence, it appeared to be acknowledged ini Cecil county,'Maryland, before two óf thé justices of Cecil county court. It was proved that Warder resided in Pennsylvania;'that he was personally present, and executed and ackhowledgéd the deed in Cecil county, before two magistrates of the said county’; and that the lands were in Washington county. The deed was objected to as hot having been acknowledged according to the adt of 1766, ch. 14. The 2nd section of that act made provision for the acknowledgment of deeds in the Provincial Court, or before one of the . justices thereof, in the county court, or before two justices of the same county where the lands were. The 3rd section’ provided for cases where persons making deeds should live remote from the Provincial Court, or out of the county where’ the’lands were lying. And such persons were authorized to acknowledge the deeds in the county ^wherein he, she or'they, should reside.” The 4£h section provided for the case of non-residents, and Authorizing their deeds'to be acknowledged by letter of attorney. The counsel for the defendant contended, that the expression reside, used' in the act, meant where a person had his continual, ordináry or usual habitation. That the grantor in the deed in question could not be considered as a resident of the’ county where the acknowledgment was made, but was merely a’ traveller from or to his usual place of residence. The plaintiffs’ counsel insisted, that’ the residence is equivo — 409 — cal, and might mean either a general or temporary residence, according to the subject matter. So that if the nature of the subject be such as to require a general or constant residence, then it should be expounded to mean such a residence. And, on the contrary, the subject being transient or of a temporary nature, it would require but a temporary residence. It was also argued, that the resident of Pennsylvania, by merely coming into this State, gained a residence pro hoc vice, within the intent and meaning of the law. The General Court decided, that the deed and acknowledgment should be read in evidence to the jury, aod declared that it was sufficient in law to convey the lands therein mentioned. And the Court of Appeals affirmed the judgment of the General Court. The act of July session, 1779, ch. 8, in establishing a mode to perpetuate testimony, provides, that the depositions of witnesses may be taken “before a judge of the General Court, or justice of the county, where suck witnesses respectively reside.” In Bryden vs. Taylor, 2 H. & J., 398, it appears the General Court held, that tills act “did not require an efficient residence, such as would make a person a domicil, qualify him to vote or to be capable of holding an. office, but a temporary or transient residence was sufficient.” Which decision was affirmed by the Court of Appeals. The case of Hall vs. Gittings, 2 H. & J., 380, has been referred to by the appellees’ counsel as being opposed to -the decision in Sim & Lee’s Lessee vs. Deakins. But there is a difference between those cases. In one the deed was acknowledged in this State by a citizen of Pennsylvania, in the other, it was acknowledged by a citizen of Maryland, and not in Anne Arundel county, where he bad his principal residence, where he voted, served on juries, and was enrolled in the militia, but at Belie-Air, in Prince Georges, a county adjoining to Anne Arundel. The proof showed, that Ogle, the grantor in the deed, with his family, temporarily resided at Belle-Air, during the summer and autumn, sometimes for a longer and sometimes for a shorter time; that the day on which the deed was executed, Ogle, with his wife,-for a short time only, stop;- — 410 — ped at Belle-Air, on (heir way to or from Anne Arundel county, and during their continuance at Belle-Air the deed was there executed; that immediately after the execution and acknowledgment of the deed, he and his wife left Prince Georges county, and he did not go thither with his family to remain during a part of the summer and autumn, according to his custom, until several weeks after the time of executing the deed. The General Cóurt instructed the jury, if they should find the facts thus stated, that then the deed was good and valid in law to pass and transfer all .the interest of Ogle, in the land, to Bosley, the grantee. After giving the instruction, it is added: “The court do not say, that a person going from one county to another can acknowledge a deed for lands lying in a different county, but a temporary residence, and not a mere transitory residence, is sufficient for that purpose.” The lands included in the deed were situate in Baltimore county. Upon appeal the above instruction was reversed, but the reasons for the reversal are not reported. It may be that the Court of Appeals did not consider the facts stated as presenting the case of even a temporary residence, but merely a transient residence, or the mere going from one county to another, in the State, by a resident of Maryland, at the time the deed was acknowledged. The case, certainly, was one in relation to a citizen and permanent resident of this State, and not to a citizen and resident of another State coming into this and acknowledging a deed relating either to lands or personal estate. The act of 1809, ch. 168, provides for the acknowledgment and recording of receipts, acquittances, releases or final discharges, of executors, administrators and guardians, from any heir, representative or legatee, of full age, or other person authorized to execute the same, and enacts, that all such instruments, “which shall have been acknowledged before any justice of the peace, or register of wills of the county wherein such heir, representative, legatee, or other person, authorized to execute the same, resides, may be recorded.” — 411 — In Carroll vs. Tyler, 2 H. & G., 54, copies of two receipts, certified by the register of wills for Prince Georges county, Were offered in evidence and objected to as being inadmissible, because it did not appear that the persons giving and acknowledging the receipts resided in the county where the acknowledgments were made. The court overruled the objection, and the defendant excepted. The Court of Appeals say: “The copies offered were duly attested under the seal of the recording office, and appear to us to have been acknowledged and recorded agreeably to the act of 1809, ch. 168.” In reference to the particular ground of objection, it is said: “The place of their residence does not appear on the face of the acknowledgment, but that they were in Prince Georges county, at the time of making it, is clear, for else it could not have been made before the register of wills of that county. This indicates a temporary or transient residence, which we consider sufficient, at least, in the absence of proof of actual 'residence elsewhere.” Then reference' is made to Bryden vs. Taylor, as authority. In Field, et al., vs. Adreon, et al., Garn. of Kennedy, 7 Md. Rep., 209, it was held, that although Kennedy, an unnaturalized foreigner, residing and doing business in this State, was not a citizen for every purpose, and in every sense, yet, for commercial or business purposes, Kennedy “was a citizen of this State in contemplation of our attachment system.” The cases which have been referred to seem to sanction the propriety of deciding, that Israel Russell, although a citizen of Virginia, having his general or habitual residence there, should be considered as having a temporary residence here, or such a residence as will gratify the requirements of the act of 1856, in relation to such an instrument as the one in question; and that he acquired such a residence by coming into Maryland, executing and acknowledging the conveyance, the same having been recorded the day it was acknowledged. Believing, as we do, that the temporary residence of Israel Russell was such a residence as amounted to a compliance with the provisions of the act requiring a bill of sale or rnort — 412 — gage to be acknowledged and recorded in the county where the party executing the same resides, the general rule, which considers the situs or permanent domicil of the owner of personal properly to be the situs of such property, and when his> permanent domicil is in one State, and life property in another, the property is to be governed by the law of the owner’s domicil, cannot operate in this case so as to render this conveyance void. Story in his Conflict of Laws, sec. 384, holds, very explicitly, that when a person, having his domicil in one country, owns personal property in another, if personally present where the property is actually situate, at the time, a transfer of the same, made by him according to the law of the place where he makes the transfer, will be valid and binding. See also note 2, to section 364, of the Conflict of Laws, on pages 605, 606, (Ed. of 1846.) A further objection to the validity of the deed, or conveyance, is, that there is no endorsement thereon of any affidavit, that the consideration therein set forth is true and bona fide. But this objection must be overruled. The 128th section of the Act of 1856, in very express terms declares, that no such affidavit shall be required in relation to a bill of sale. And the 142nd section of the same Act, when speaking of mortgages of personal property, says: “No affidavit, as to the consideration, shall be required.” These provisions, dispensing with the affidavit, are contained in the engrossed bill, and in the law, as published; but, nevertheless, it has been contended, that they are not, in reality, parts of the Act, as passed by the Legislature, and should not be considered as parts of the law. In support of this view it is said, that the original bill, as reported, contained the sections which dispense with the affidavit, both as to bills of sale and mortgages of personal property, as now contained in the printed copy of the Act, but that the bill was amended in the Senate, by striking out the provisions .in the 128th and 142nd sections, which dispense with the affidavit, as to the consideration, and adopting other provisions in lieu of them, expressly requiring the affidavit, both in relation to bills of sale and mortgages of personal property; which amendments of the Senate were assented to by the — 413 — House of Delegates; and that they were included in the bill, as finally passed, tnay be seen by reference to the Senate journal of 1856, pages 233, 234, and the House journal, of same session, pages 497,498. Seeing that the engrossed bill and the published copy of the law correspond, we do not feel authorised to assume they are erroneous, and decide the law to be according to the evidence of the proceedings of the Legislature, as furnished by the journals of the two Housesi An engrossed bill, according to the practice of legislation in this State, is examined by a committee of the house in which it originated, then the bill, as engrossed, is assented to by both houses, then attested by the chief clerk of each house and signed by the Governor, with the seal of the State annexed. All this would seem to be better evidence of what a law is than the journals of the two branches of the Legislature, each journal being kept and attested only by the chief clerk of his particular branch. See also the Act of 1845, ch. 89. But assuming the law, as published, to be correct, still, it is insisted, that, when viewed in connection with chapter 113, of the same session and passed the same day, the 154th chapter should not be construed as dispensing with the necessity for the affidavit. Chapter 113 is entitled, “An Act amendatory of an Act entitled, an Act to prevent frauds in mortgages and bills of sale, passed at December session eighteen hundred and forty-six, chapter two hundred and seventy-one.” Its first section provides, that where there are several mortgagees or grantees, the affidavit of anyone of them shall make the instrumentas valid as if the affidavit had been made by all the mortgagees, or grantees, as required by the original act. it also declares, that any mortgage or bill of sale, executed since, the passage of the original act, which should show, upon its face, that the affidavit had been made by one of the mortgagees or grantees, should be as valid as if it had been made by all of them. The second section allows the affidavit to be made by an agent or attorney, where the mortgagees or mortgagee, grantees or grantee, should not reside in the county of city in — 414 — which it should be necessary (o record the mortgage or bill of sale. This act was evidently designed, chiefly to remedy evils or inconveniences supposed to result from the provisions of the original act, to which it was made amendatory, and certainly does not, in terms, appear to have been passed in reference to the 154th chapter of the same session. By merely providing how the affidavit may be made, it surely cannot be construed as repealing those provisions of chapter 154, which declare, most explicitly, that an affidavit shall not be required for a bill of sale, or a mortgage of personal property. In speaking of these two acts we shall, for convenience, designate chapter 113, as the first, and chapter 154 as the second law. The 3d sec. of the first act makes it take effect from the date of its passage. The second contains no provision as to when it should go into effect, and, of course, it did not do so until the first day of June 1856. It has been said, that when the two acts are seen to have been passed on the same day, it cannot be supposed the Legislature intended the second should be construed as rendering an affidavit to bills of sale and mortgages of personal estate wholly unnecessary, when, at the same time, by the first act, they provided how the affidavit might be made in relation to the same instruments. And it has been urged in argument, that the proper interpretation of the two laws must be, to require the affidavit, because the opposite theory would be to stultify the Legislature, by imputing to it the absolute inconsistency of providing how a thing may be done, and declaring, at the same time, that it shall not be done. And further, if the second act renders the affidavit needless, as to bills of sale and mortgages of personal estate, then the provisions of the first., in relation to those instruments, are useless and perfectly nugatory, having nothing on which they can operate, although such instruments, which might be made after the passage of that act, are provided for by it. An interpretation of a law, which must render some of its provisions nugatory, it is contended, should be avoided, as far as practicable. But construing the — 415 — second law as dispensing with the affidavit, will not render the first utterly* nugatory and useless, as has been supposed, with reference to bills of sale and mortgages of personal estate, executed subsequently to that act. We have seen .that the second did not take effect until the first of June 1856, and the other did on the 8th of March preceding, (being the day of its passage,) and therefore its provisions would operate upon any of the instruments alluded to, which may have been executed between the dates above mentioned. The sections of the second law, in regard to such instruments, can have no influence or effect upon the provisions of the first, which relate to mortgages of real estate, or to those in reference to a mortgage of, any sort, or a bill of sale, made prior to that act and after the passage of the original act, mentioned therein. i. (Decided May 31st, 1859.) Thus, it will be seen, the second act may be construed as dispensing with the affidavit, as to the consideration of a bill of sale or mortgage of personal property, without rendering any of the provisions of the first act perfectly nugatory and useless, for the want of subjects' on which they could operate. We consider the conveyance, executed by Israel Russell to the appellant, valid, and the instruction given by the court below erroneous; the judgment therefore must be reversed, and no procedendo will be awarded. Judgment reversed and no procedendo awarded.