Union Bank v. Kerr , 7 Md. 88 ( 1854 )

Mason, J.,

delivered the opinion of this court.

In this case the Union Bank is but a mere nominal party. It had received certain notes or obligations from E. M. Kerr, to meet his liability to that bank, and now holds, after paying its own debt, a surplus of $574, subject to the order or demand of any one legally entitled to claim it. John D. Kerr the plaintiff, (now appellee,) claims the fund, and this action was instituted to recover it. To support his claim, the plaintiff offered in evidence the following paper or instrument of writing, to wit:

“For value received, I assign to John D. Kerr, all- the notes now deposited for collection in the-Union Bank of Maryland, subject nevertheless to the right of the said Union Bank, to appropriate so much of the proceeds of said collections^ as may be requisite and sufficient to pay in full the note of Talbott Jones and Company, in my favor and by me endorsed, dated 14th March last, at six months after date, for $1341.82; and I hereby furthermore authorize and direct said Union Bank to- pay over to said John D. Kerr, the surplus of said proceeds, or, if so required by him to hand over to him whatever notes may remain unpaid at the time of such request, on payment to said bank of the balance, if any, that may then be due to said bank- on said note; also the said note of Talbott Jones and Company, I hereby assign to said John- D„ Kerr, on its payment; to said bank, if paid out of said collections, or by said John I). Kerr, in whole or in part.

Signed, Edward M. Kerr.

“Baltimore, August 21 si, 1846.

“Presented to Union Bank Maryland, August 22nd, 1846.

R. Mickle, Cashier.

“The said notes are held by the Union Bank of Maryland, as collateral for all liabilities of E. M. Kerr to the bank.

R. M., Cash.”

It is not denied, that at the time this instrument of writing was executed, E. M. Kerr was insolvent, and has since taken the benefit of the insolvent; laws of this State.

The validity of this paper, and the right of the plaintiff to maintain his action upon the case as made by the record, are assailed upon several grounds by the appellant.

One of the points of objection is, that though the plaintiff may have been a citizen of a foreign State, still if the paper was executed in this State, the contract is thereby brought within the operation of our insolvent laws, and having been made in prejudice of those laws, is therefore void, and that the title to the money vests in the trustee. The case of Poe vs. Duck, 5 Md. Rep., 1, decides directly the reverse, and is therefore an answer to this objection.

Another objection to this paper is, that it was in point of law a mortgage, and as such was void, not having been stamped as required by the acts of 1844, ch. 280, and 1845, ch. 193. We cannot discover in this instrument any of the peculiarities or incidents of a mortgage. It is upon its face absolute and unconditional, without any words of defeasance, and without the redemption clause. It is wholly unlike the deed in Charles vs. Clagett, 3 Md. Rep., 82, which was a conveyance of property to secure a debt, the surplus, if any, to result to the grantor. The present is an unconditional assignment of notes, more properly of money, for a valuable consideration.

It is further urged by the appellants’ counsel, with more force, we admit, that the present paper if not a mortgage is nevertheless a bill, draft, or some other evidence of debt, which requires a stamp under the law above referred to. If it be conceded that it is a draft or bill, yet clearly it must fall within the exception to the law, pointed out by the Court of Appeals, in the case of Burton vs. The State, 3 Gill, 1. It was not sold, nor was it intended to be put in circulation, for the reason that its value was uncertain, depending upon contingencies. On the other hand, we can regard it in no other light, if it be a draft at all, than as one made solely to obtain possession, by the party, of his own funds, by making them applicable to the payment of his debts, and as such not requiring a stamp. The present is unlike the case of a farmer or planter, put by the appellants’ counsel, who draws a draft, for a specific sum, on time, upon his factor, upon the faith of produce either in the latter’s possession, or to be placed there. In such a case the paper would become a debt or obligation, negotiable in its character, and therefore liable to be put in circulation, and as such subject to a stamp duty. If the counsel had varied his illustration, by supposing that the farmer had drawn an order upon his merchant, to pay over to a particular person the proceeds of the sales of his produce as soon as they were realized, without naming any amount or time, it would more resemble the present transaction. In such a case, it could hardly be contended, that a stamp would be necessary.

There is still another insuperable objection to treating this paper as one requiring a stamp, either as a mortgage or a bill: and that arises from the impossibility of ascertaining the denomination of the stamp required. As we have said, this was a mere order to pay money, the amount of which depended entirely upon future contingencies, and was therefore so far uncertain as to render it impossible to fix the rate of stamp duty to be paid.

The next alleged objection to the appellee’s case is, that in his prayer, which the court below granted, he assumes the fact, that the paper was duly executed and delivered by E. M. Kerr, whereas the finding of that fact should have been submitted to the jury.

We do not think this objection is well taken, because the finding of the execution of the paper, was in point of fact submitted to the jury. The language of the prayer upon this point is, and if the jury “shall further find from the evidence that said assignment was made by said E. M. Kerr, fairly and bona-fide,” &c.

The next and last objection, in its character is the opposite of the one we have just considered. This last is based upon the ground, that the province of the court has been invaded, by submitting to the jury a question of law, while the other sought to vindicate the rights of the jury from illegal encroachment by the court. It is supposed, that the matter of citizenship was a question of law, and ought to have been defined by the court. This may or may not be true. Prima, facie it is not true. In all cases of undoubted and undisputed citizenship, and generally citizenship is of this character, no question of law could properly arise, and in such cases it may be said to be a question of fact simply to be found by the jury. Where, however, there is any dispute as to the legal effect or character, of the facts upon which the citizenship is to depend, that dispute must be settled by the court, while the facts themselves are to be found by the jury. In all cases either party, if he thinks proper, may ask instructions of the court, as to the legal effect of any particular circumstance which maybe offered to the jury, and from which the particular matter in controversy is to be deduced. This view is fully sanctioned by the case of Atwell vs. Miller & Mayhew, 6 Md. Rep., 10.

Finding no error in the ruling of the court below, upon the several questions presented by this record, we must affirm the judgment.

Judgment affirmed,