Goldsborough v. Tinsley

Pattison, J., delivered the opinion of the court. The appellants, Phillips Lee Goldsborough, Emerson O. Harrington and E. McClure Pouter, trustees, under a deed of trust to them from Wm. F. Applegarth, dated the 14th day of July, 1920, did, on the 1st day of September' thereafter, file their bill in this case in the Circuit Court- of Baltimore City upon the authority of the Circuit Ctrart for Dorchester County, where said trust estate is being administered. In their bill they alleged that included in the property conveyed and assigned to them under said deed were ten promissory notes drawn by Anderson T. Herd to the order of Wm.

F. Applegarth dated the 30th day of April, 1920, each for the sum of $9,000. These notes were filed as exhibits with the bill and the court was asked to taire and consider them as a part of it. The bill then alleges: “That simultaneously with the giving of said notes by him said Anderson T. Herd, as security for the payment thereof, did transfer to the said William F. Applegarth by bill of sale thereof dated the 30th day of April, 1920, one hundred and twenty head of Guernsey cattle, enumerated and mentioned in a schedule thereof attached to said bill of sale, which bill of sale and schedule are filed herewith and prayed to be taken as a part hereof, marked 'Complainants’ Exhibit O.’ “That the cattle transferred by said bill of sale were at the date thereof in part on the farm of the said Anderson T. Herd, located in Bucks County, Pennsylvania, and in part on the property contiguous thereto, located in said county. That your orators are advised and aver that subsequent to the date of said bill of sale, to wit, on some date in the month ⁴¹³ of August, 1920, the respondent, T. Garland Tinsley, although having full knowledge of the existence of said hill of sale and to secure the payment to him of a past due indebtedness, caused sixty-three head of cattle so conveyed to said William F. Applegarth to he removed to the farm of the respondent, Merryman, at Cockeysville, in Baltimore County, Maryland, and that the respondents are about to dispose of said cattle or a part thereof at public auction and to appropriate the entire proceeds of such sale to the payment of an indebtedness claimed to be due to the said Tinsley by the said Anderson T. Herd. “That the cattle so taken by the respondents is the only property located in this State which belongs to the said Herd so far as is known to your orators, and it is so averred by them, and that by reason of the taking of the same by the said Tinsley and the placing of it in the custody of his agent, the said Louis McL.

Merryman, your orators have lost control over the security given by said Anderson T. Herd to the said William E. Applegarth for the payment of the said indebtedness of ninety thousand dollars due by the said Herd as above set out, and which indebtedness and the security for the payment of the same is now owned, by virtue of said deed of trust, by your orators, trustees as aforesaid; and that if said respondents are permitted to dispose of said cattle and appropriate the proceeds of sale thereof to the use of the said Tinsley, the security for the indebtedness due to your orators by the said Herd will be lost to the extent of the number of cattle so wrongfully taken by the respondent and appropriated to his own purpose, to their great and irreparable loss, and will leave them with no security for the indebtedness due to them except to the extent that there may be other cattle covered by said bill of sale the value of which is uncertain and the title to which in the said Herd is in doubt and subject to conflicting claims.” ⁴¹⁴ The prayers of the hill are: (1) That the defendants he enjoined from disposing of the cattle so removed and held hy them; and (2) that a receiver or receivers he appointed to take charge of and dispose of said cattle under the jurisdiction of the court and to pay over the proceeds thereof to the plaintiffs in satisfaction of the indebtedness so secured by said bill of sale, and after the satisfaction of the same, to dispose of the remaining proceeds of sale in the hands of such, receiver or receivers in accordance with the orders thereafter to be passed by the court in relation thereto-. The bill of sale from Herd to- Applegarth, which by the bill of complaint is made a part of it, is as follows-: “Know all men by these presents, That I, Anderson T. Herd, of the City of New York and State of New York, in consideration of the sum of ninety thousand dollars ($90,000) to me in hand paid by William E. Applegarth, Cambridge, Dorchester County, Maryland, at and before the ensealing and delivery hereof, do by these presents grant, bargain, sell, release and confirm unto the said William E. Applegarth all and singular the one hundred and twenty head of Guernsey cattle enumerated and mentioned in the schedule hereunto annexed, marked Exhibit ‘A,’ and made a part of this bill of sale. “To have and to hold the said one hundred and twenty head of Guernsey cattle, and every of them, to and for the use, ownership and behoof of the said William E. Applegarth, his executors, administrators and assigns. absolutely. “And the said Anderson T. Herd, vendor, hereby covenants with the said William E. Applegarth, vendee, that he, the said vendor, is the lawful and absolute owner of the goods and chattels hereby conveyed and that he will warrant and defend the title to the same to the said William E. Applegarth, vendee, his executors, administrators and assigns, against any and all persons whomsoever claiming or to claim the same.- “The said bill of sale is made subject to a consignment of the said cattle to Leander F. Herrick, auction ⁴¹⁵ eer, of Worcester, Mass., who is to expose this herd to public vendue on the 29th and 30th days of June, A. D. 1920, at Herdlea Parms, Bucks County, Pennsylvania, provided an order is duly executed and delivered by me, the said Anderson T. Herd, to the said William P. Applegarth on the said Leander P. Herrick, auctioneer, authorizing him from the sale of the proceeds of the said cattle to pay the sum of ninety thousand dollars ($90,000) to the said William P. Applegarth. And also subject to certain other reservations enumerated in Schedule ‘A’ hereto annexed. “In witness whereof, I have hereunto set my hand and seal this 30th day of April, in the year of our Lord one thousand, nine hundred and twenty (1920). “Anderson T. Herd. (Seal) “Signed, sealed and delivered in the presence of: ¥m.

J. C. Dulany. “On the day of the date of the above bill of sale livery of seisin of the articles mentioned in said Schedule ‘A’ was given by the said Anderson T. Herd to the said William P. Applegarth in the presence of us. “W. J. O. Dulany. “W. P. Applegarth. Stuckett, A tty. at Law, “Doylestown. “State of New Jersey, County of. Mercer, ss.: “On the 30th day of April, A. D. 1920, personally appeared before me, a notary public, duly commissioned in and for the said state and residing at Doylestown, in said county, the above named Anderson T. Herd, and in due form of law acknowledged the foregoing estimate to be his act and deed and desired the same might be recorded as such according to law. “Witness my hand and seal the day. and year aforesaid. “(Seal) William S. Ivins, “Hotary Public.” ⁴¹⁶ . Upon the bill and exhibits filed Judge Boetd, then sitting-in the Circuit Court of Baltimore City, ordered the defendants, Tinsley and Merryman, to appear in court on the day named in the order and show cause, if any they had, why a receiver or receivers should not be appointed as prayed, and. further ordered that a writ of injunction be issued enjoining and prohibiting1 Tinsley and Merryman and each of them from disposing in any manner of the cattle brought to the farm of the respondent, Merryman, by or for the respondent, Tinsley, until the further order of that court; and the injunction was issued as ordered.

The defendant, Tinsley, appeared and on the 22nd day of September, 1920, filed a demurrer to the bill and, on the-26th day of November following Judge Staettoet, then sitting in said court, filed his order by which he sustained the demurrer, denied the application for the appointment of a receiver, dissolved the injunction previously granted, and dismissed the bill. It is from that order that the appeal in this case was taken. It will be seen from the allegations of the bill and the exhibits filed therewith that the bill of sale to Applegarth was executed in the State of New Jersey by “Anderson T. Herd of the City of New York and State of New York” upon property in the State of Pennsylvania, which, prior to the institution of these proceedings, was brought into this State. It is contended by the defendants that the question presented by the 'demurrer — -whether the plaintiffs are entitled to the relief sought upon the allegations contained in the bill —must be decided by applying the law of Pennsylvania to the facts alleged, and that, if it be so. applied, -it will be shown that the plaintiffs are not entitled to such relief.

But as this-case is before us on demurrer to- the bill, the question presented cannot be decided upon the law of Pennsylvania or upon the laws of New York or of New Jersey, should it beheld that such question is controlled by the law- of either of these states, as