Union Bank v. Kerr

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„ ⁹⁹ 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 ¹⁰⁰ 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