Wilson v. Carson

• Decision Date: 02 June 1858
• Citation: 12 Md. 54
• Parties: THOS. WILSON & CO., v. THOS. J. CARSON & CO., Garnishees of E. WEBB, MAXCY & CO.
• Court: Maryland Court of Appeals

12 Md. 54

THOS. WILSON & CO., v. THOS. J. CARSON & CO., Garnishees of E. WEBB, MAXCY & CO.

Court of Appeals of Maryland.

Jun. 2, 1858

An order directing consignees " when in funds from sales of various shipments of hog product, to pay" certain named parties " the sum of $10,000, should the balance coming to us " (the consignors) " amount to that sum, " cannot defeat an attachment laid in the hands of the consignees, by creditors of the consignors, before the former had accepted the order, or in any way assented or agreed to, or recognised the appropriation of the fund to the specified purpose.

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 the fund in his hands.

But an order either on a general or particular fund, for a part only, is not an assignment of that part, nor does it give a lien thereon as against the drawee, until he consents to the appropriation by accepting the order, or an obligation to accept may be fairly implied from the custom of trade, or the course of business.

The testimony of two witnesses, (lawyers,) that they are of opinion a certain deed is, according to the laws of Kentucky, where it was executed, legal and sufficient to convey the property to the grantee, and that they know of no statute of that State affecting this opinion, is sufficient proof of the foreign law, and this being the only testimony on this point in the case, and the question being whether the deed should be admitted in evidence, the proof is for the court.

The recognition of the laws of another State in the administration of justice in this, is not a right stricti juris, but depends entirely on comity, and in extending it, courts are always careful to see that the statutes or policy of their own States are not infringed, to the injury of their own citizens.

The act of 1729, ch. 8, sec. 5, requiring conveyances of personal property, whereof the grantor remains in possession, to be recorded within twenty days in the county where the grantor resides, applies only to deeds made in Maryland, and not to those made in another State.

A deed of trust, for the benefit of creditors, executed in another State, in conformity with the laws thereof, though not executed, acknowledged or recorded in Maryland, transfers the title to personal property in Maryland so as to defeat an attachment subsequently sued out in this State by creditors of the grantor residing here.

APPEAL from the Superior Court of Baltimore city.

Attachment on warrant issued out of the Superior Court of Baltimore city, on the 3rd of January 1854, at the instance of the appellants, citizens of Maryland, on a claim due them by E. Webb, Maxcy & Co., citizens of Kentucky, for $4847.96, and, on the 4th of January 1854, laid in the hands of T. J. Carson & Co., as garnishees, who appeared to the writ and pleaded non assumpsit and nulla bona, upon which issues were joined.

Exception. By the admissions and poof in the case it appears that the plaintiffs were citizens of Maryland, that the garnishees, Thos. J. Carson, Jos. Carson and Saml. C. Edes constituted the firms of T. J. Carson & Co., and Carson & Edes, the former doing business in Baltimore, and the latter in New York, and both firms being one concern; and that the defendants, Ezra Webb, Wm. Maxcy and Thos. G. Rowland constituted the firm of E. Webb, Maxcy & Co., which did a general factorage, commission and brokerage business in Louisville, Kentucky, and all the members of this firm, together with Wm. Teeter and E. Lewis Stoll, composed the firm of Teeter, Maxcy & Co., of Louisville, which pursued exclusively a slaughtering and pork-packing business, the former being the financial and shipping agents of the latter firm; that these two last mentioned firms failed in business, and, on the 31 st of December 1853, all the members of both united in a deed of trust or assignment to Wm. Riddle, of Louisville, the provisions of which are as follows:

It conveys to the trustee a large amount of real estate in Kentucky, belonging to said Wm. Maxcy, individually, and his household and kitchen furniture; a considerable amount of real estate in Kentucky, belonging to said T. G. Rowland, individually, also certain slaves belonging to him, and his household and kitchen furniture; all the said Wm. Teeter's estate, real, personal and mixed; all the household and kitchen furniture of said E. Webb; certain real estate in Kentucky belonging to said E. Lewis Stoll, individually, and his interest in a certain tannery in Louisville; all the warehouse furniture of said E. Webb, Maxcy & Co., and the lease of the warehouse; all the accounts, debts, rights, choses in action, and personal property set out particularly in paper M., No. 1, made part of the deed; one hundred and sixty hogsheads of tobacco; all their interest in two hundred and seventy-two boxes of manufactured tobacco, shipped by E. Webb, Maxcy & Co., to Penn & Mitchell, of Baltimore, and for which the latter gave their acceptances; all the shipments of produce mentioned more particularly in said paper M., No. 1, and on the faith of which the acceptances of the consignees were given; all said Rowland's interest in the Farmers tobacco warehouse; and certain plank belonging to Teeter, Maxcy & Co.; in trust to sell and convey all said property, collect all the debts and choses in action, and out of the proceeds pay, first, the expenses of executing the trust, and for that purpose, the trustee may employ any agent or agents, and pay him or them a reasonable compensation; and secondly, to pay off the debts mentioned in a schedule also made part of the deed; and should there not be sufficient to pay all, then to pay them pro rata, with power to the trustee to sell and dispose of the effects so conveyed as he may deem proper, and most to the interest of the cestui que trusts; and also with full power and authority to compromise and compound, as he may think proper, any claim hereby conveyed. (This schedule of liabilities includes the debt for which the plaintiffs have attached, and an item of $30,862.15, specified as due " Wm. Teeter, being balance due on account of purchase of hogs on account of the house." ) The deed then declares that the transfer of the claim on Carson & Edes, and T. J. Carson & Co., and Lees & Walter, is subject to drafts and assignments theretofore given by the grantors--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 then directs the trustees to defend certain attachments laid on a portion of the property conveyed, and then pending in the Louisville Chancery Court, and which the grantors deem to have been improperly issued, and if the plaintiffs therein should be successful, the trustee is to pay the claims attached for, and if unsuccessful, then said debts are to be paid pro rata with the others. The deed then explains that the item of $30,862.15, rendered in the schedule of liabilities, is intended to cover claims and notes created by Wm. Teeter, for purchases for said firm, in and for some of which he has executed the notes of Teeter, Maxcy & Co., which debts so created are designed to be secured by this deed, and the trustee is to pay the same with the other debts specified in the schedule.

The deed is executed by the grantors in their individual names, and by the two firms in their co-partnership names, and also by Riddle, the assignee, as an acceptance of the trust, and, on the same day, was recorded in Kentuckey, but was never stamped nor recorded in Maryland, and no affidavit as to the consideration was made by the grantee.

The claim of the plaintiffs, on which the attachment issued, was admitted to be correct, and it was further admitted, that neither of the defendants was, at the time the attachment issued, a citizen of Maryland, nor did either of them then reside therein; that Jos. Carson, one of the garnishees, was in Madison, Indiana, at the end of the month of December 1853; that at the time the attachment issued and was laid, there was a large amount of produce, consisting of pork, lard, bacon, and other provisions, in the hands of the garnishees, T. J. Carson & Co., in Baltimore, which had been consigned to them, for sale, by E. Webb, Maxcy & Co., of Louisville, and that afterwards, and before pleas filed, there accrued from the sale of said property, in the hands of the garnishees, over and above all advances made by said firms of T. J. Carson & Co., and Carson & Edes, the sum of $12,805; that the property consigned as aforesaid, was parcel of that mentioned in paper M., No. 1, attached to the above deed; and that the property mentioned in said deed is inadequate to pay the creditors named in the schedule of liabilities thereto annexed.

The assignments of the proceeds of the property in the hands of T. J. Carson & Co., and Carson &amp Edes, referred to in the deed, were made on the 30 th of December 1853, the day before the deed was executed, and consist of six drafts or orders, two of which are signed by E. Webb, Maxcy & Co., and the others by Teeter, Maxcy & Co. They are all directed to T. J. Carson & Co., and Carson & Edes, with the exception of one, in favor of Gill, Anderson & Co., which is directed to Carson & Bro., and, in reference to this, two witnesses, examined under the commission, swear that notice thereof was given to a man they call Joseph Carson, whose name the witnesses believe is T. J. Carson, at Madison, Indiana, on the 30th of December 1853. It was, however, admitted there was no such firm as Carson & Bro. The terms of these several orders are sufficiently stated in the opinion of this...