Brown v. Bokee

• Decision Date: 10 March 1880
• Parties: WILLIAM A. BROWN and Alexander T. Hamill v. GEORGE M. BOKEE, Adm'r of Mary E. Hamill.
• Court: Maryland Court of Appeals

53 Md. 155

WILLIAM A. BROWN and Alexander T. Hamill v. GEORGE M. BOKEE, Adm'r of Mary E. Hamill.

Court of Appeals of Maryland

March 10, 1880

Appeal from the Baltimore City Court.

The case is stated in the opinion of the court.

Exception.--At the trial before the court without the intervention of a jury, the plaintiff prayed the court to declare:

That the United States bonds and the certificates of city indebtedness, mentioned in the evidence and in the agreed statement of facts, were choses in action belonging to Mary E. Hamill at the time of her death; that there is no evidence in the case from which the court can find that the said choses in action were reduced to possession by Alexander Hamill, her husband, during his life-time, and that, therefore, the said choses in action, on the death of the said Alexander, devolved upon the representatives of the said Mary, and the facts of demand by the plaintiff, and refusal by the defendants of said choses in action being admitted, the verdict must be for the plaintiff.

The defendants prayed the court to declare:

1. That the action of trover cannot be supported for the bonds and certificate of stock mentioned in the evidence, and therefore, the verdict of the court should be for the defendants.

2. That the United States bonds mentioned in evidence, are not choses in action, in the sense contemplated by the Code, Art. 93, sec. 32.

3. That the certificates of stock debt of the Mayor and City Council of Baltimore, mentioned in evidence, are not choses in action, in the sense contemplated by Art. 93, sec. 32.

4. That if the court believe the five coupon bonds of the United States, mentioned in evidence, were, during her coverture the property of the plaintiff's intestate, and that defendants' intestate was the husband of said plaintiff's intestate, and survived her, and after her death, demanded from the custodian thereof, the possession of said bonds, and that said bonds were delivered to said surviving husband, who received the same into his care and custody, then the said plaintiff cannot recover in this action the value of said bonds.

5. That if the court believe that two certificates of indebtedness of the Mayor and City Council of Baltimore, mentioned in the evidence, were, during her coverture, the property of Mary E Hamill, and that Alexander Hamill was her husband, and survived her, and that after her death, the said Alexander Hamill demanded from the custodian thereof, the said two certificates of indebtedness, and that said certificates were delivered to said Alexander Hamill, who retained the same during his life, and collected the interest thereon as it became due, and that after the death of said Alexander Hamill, letters of administration on his personal estate were granted by the Orphans' Court of Baltimore City to the defendants, who found said certificates of indebtedness among the personal effects of said Alexander Hamill, and took possession thereof, the plaintiff is not entitled to recover.

6. That the demand made by Alexander Hamill, as surviving husband of Mary E. Hamill, upon William F. Bokee, the custodian thereof and the delivery by said Bokee to said Hamill, in his life-time, of the certificates of stock, and certificate of deposit of coupon bonds of the United States, mentioned in evidence, was such a reduction into possession by the surviving husband of Mary E. Hamill, as vested the title in said property in said Alexander Hamill, and, therefore, the plaintiff is not entitled to recover in this action.

The court, (Garey, J.,) granted the prayer of the plaintiff, and rejected the prayers of the defendants; the defendants excepted, and the verdict and judgment being for the plaintiff, they appealed.

The cause was argued before BARTOL, C.J., MILLER, ALVEY and IRVING, JJ.

J Wilson Leakin and William A. Stewart, for the appellants.

The appellants contend, that the bonds and stock in question are not choses in action, because they do not come within the meaning and intent of these words, as defined by standard writers on the subject. 1 Bouvier's Inst. 191; Williams' Pers. Prop. 199, 200; Coke upon Littleton, 351 b; Sheldon v. Sill, 8 How. 449; 2 Kent 340, 347, 351; Williams on Executors, 784, note b; Comyn Digest, Title, Biens; 1 Chitty's Pr. 99; 2 Bl. Com. 389, 397; Williams on Pers. Prop. 7, 198, 375.

Bonds of the United States cannot come within the definition of a thing in action, because the government cannot be sued, without some special Act of Congress permitting it, and there is no such Act, allowing suit upon the bonds in question. Briscoe v. Bank, 11 Pet. 321; United States v. McLemore, 4 How. 288; Hill v. United States, 9 How. 389; Reeside v. Walker, 11 How. 290; Case v. Terrell, 11 Wall. 199; Schouler on Pers. Prop. 615, 616.

The language of the Code, Art. 93, sec. 32, shows a legislative definition of the term chose in action, as a thing upon which a judgment may be obtained. This section of the Code is in derogation of the common law, and must be construed strictly. Pembroke v. Peacock, 4 Md. 280; Hubbard v. Barcus, 38 Md. 180; Sedgwick's Statutory and Const. Law, 33; Warner v. Fowler, 8 Md. 25; Dyson v. West, 1 H. & J. 567; Sedgwick, Construction, etc., 267-269, and notes; Thistle v. Frostburg Coal Co., 10 Md. 129; Peters' C. C., 188; Potter's Dwarris' Statutes, 185, 186, n; Stockett v. Bird, 18 Md. 484.

The statute, although general in its language, does not cover either State or Government securities, for it is a well-known principle that the sovereign is not included in the statute, unless expressly named. 5 Co. 146; 11 Co. 70; 8 Mod. 8; 1 Str. 516.

The same doctrine is firmly established in Maryland. Murray v. Ridley, 3 H. & McH. 171; Contee v. Chew, 1 H. & J. 417; State v. Bank of Md., 6 G. & J. 226; State v. R. R. Co., 34 Md. 374; Tiernan v. Rescamiere, 10 G. & J. 225; State v. Milburn, 9 Gill, 118; Opin. of Taney, C.J., in appendix to 2 How.

It is contended, that the possession of the Safe Deposit Co. after the death of Mrs. Hamill, was the possession of the husband; and that the delivery of the receipt of the said company, and the certificates of indebtedness of the Mayor and City Council of Baltimore, by William F. Bokee, who held the same as agent of the appellee's intestate, in her life-time, to said Alexander Hamill, was a reduction into possession, and vested title in the surviving husband. The Safe Deposit Co. was merely custodian for the true owner. Act of 1876, ch. 27; Tritt v. Colwell, 31 Pa. St. 233; Boynton v. Pano, 67 Me. 587; Stewart v. Redditt, 3 Md. 79.

The action of trover does not lie for a share of stock, although it is admitted that such an action may be brought for the paper or certificate, under or by which the existence of the same is evidenced. Sewell v. Bank, 17 S. & R. 285; Pierce v. Vandyke, 6 Hill, 613; Compare t v. Burns, 5 Blackf. 419.

George H. Chandler and Robert D. Morrison, for the appellee.

The securities in question are undoubtedly choses in action, if the ancient and usual definitions of that class of property are to be accepted as authority, or if the essential features and qualities of such property are to be regarded. 2 Bl. Com. 396, 397, 433; Co. Litt. 351; Wms. P. P. 5, 61; 1 Schoul. P. P. 86, 459.

Within the past century and a half, the exigencies of society have brought into existence some debts of a kind not known before, in which a large part of the wealth of modern times is invested. Some of these are commonly known as public debts, and are nothing else than loans of money for long periods, at fixed rates of interest, usually evidenced by bonds or other certificates of indebtedness. They have all the requisite elements of contracts of loan, and the certificates therefor are usually under seal, and are properly treated by the law as choses in action. 1 Schouler's Pers. Prop. part III, ch. II, where the history and legal aspect of this species of personal property are fully considered.

It can obviously make no difference, whether the obligor or debtor is a King, a Nation, a State, a county, a municipal corporation, a private corporation, a co-partnership or an individual, if only the relation of debtor and creditor is duly established. Wms. P. P. 183; The Floyd Acceptances, 7 Wall. 666; United States v. Barker, 12 Wheat. 559; Same v. Bank, 15 Pet. 377; Bank v. United States, 2 How. 711.

The United States five-twenty coupon bonds in question are obligations for payment to the bearer of money borrowed by the Government under the authority of law. As such, they are not money or currency, and have none of its essential and distinctive qualities. They are rather negotiable commercial paper, having all the peculiar features necessary to bring them under the law governing that class of property, as has been repeatedly held by the Supreme Court. 3 Am. Law Rev. 218; 1 Schoul. P. P. 614; Vermilye v. Adams Express Co., 21 Wall. 138; Texas v. White, 7 Wall. 735; Texas v. Hardenberg, 10 Wall. 68; Thompson v. Lee County, 3 Wall. 327; Arents v. Commonw. 18 Gratt. 750; Kearney v. State, 48 Md. 16; Can. Co. v. Blair, 45 Md. 102; Hutchins v. Bank, 12 Met. 421.

The decided tendency of the English cases is to the effect, that "stock in the funds" is not money, and is not included in the most liberal and comprehensive use of that word. Wildman v. Wildman, 9 Ves. 177; Hotham v. Sutton, 15 Ves. 319; Gosden v. Dotterell, 1 My. & K. 56; Lowe v. Thomas, 5 DeGex, M. & G. 316; Same Case, Kay, 369.

Coupon bonds of municipal and other corporations payable to bearer are by recent American decisions to be considered as negotiable commercial paper, assignable by delivery. 1 Schoul. P. P. 611; Mercer County v. Hackett, 1 Wall. 83; Gelpcke v. Dubuque, Ib. 175; Myer v....