Barnitz v. Rice

| Md. | Jun 23, 1859

Le Grand, C. J.,

delivered the opinion of this court.

The decision of this appeal must depend upon the construction to be placed on the deed which has given rise to this controversy. It is a deed by a debtor to a trustee, for the benefit of the creditors of the debtor, and exacting of them releases.

The conveyance of property is in these words: “All the stock in trade and merchandize, goods, chattels and effects, and promissory notes, securities, evidences of debt, and claims and demands of, or belonging to, or in any wise or manner claimable by me.”

To this deed it is objected, that it does not, on its face, convey all of the property of the grantor, and not doing so, that it is not competent, to those insisting on its validity, to show, by extrinsic evidence, that in point of fact it does convey all the property which the grantor had at the time of its execution.

•Under the decisions, and particularly those of this court, we think the objection well taken. In the case of Green vs. Trieber, 3 Md. Rep., 40, this court said: “We are to look to the character with which the law stamps the deed, without reference to extrinsic facts as to motive. If the law imputes to the grantor a design in making the deed, no evidence of intention can change the presumption. If the law declares the deed to be void, it is no matter how the question of fraud in fact may stand.” This doctrine was fully sanctioned in Malcolm, Trustee of Sprigg, vs. Hodges, 8 Md. Rep., 418, and re-asserted in Rosenberg & Blondheim vs. Moore, 11 Md. Rep., 380.

The language of these cases, it would seem, is too explicit to admit of doubt as to its meaning. But it was urged by the able counsel of the appellant, that it should be viewed in connection with that employed in the case of Sangston, Garnishee vs. Gaither, 3 Md. Rep., 40, 48, and if so considered, the particular deed involved in this controversy would hot be obnoxious to the censure of the law as expounded by this court. We cannot deduce the same conclusion from the collocation and comparison to which we have been invited. In our judgment, the case of Sangston vs. Gaither is in harmony with the subsequent ones to which we have referred. The portions of the opinion relied upon by the appellant’s counsel were intended simply as replies to phases of argument pre - sented by counsel, intended to show, that even on his own hypothesis his views could not be sustained. That decision, whilst it expressly declares, “that an assignment for the benefit of creditors, exacting releases, as the condition on which they may participate in the fund, must transfer all the debt- or’s estate,” nowhere lays it down, or even intimates, that where the deed does not, in words, do this, that by testimony aliunde it could be shown the deed did, in point of fact, convey all the property of the grantor, and is therefore, in no respect, in conflict with the cases of Malcolm vs. Hodges and Rosenberg & Blondheim vs. Moore, but, on the contrary, perfectly consistent with them.

We are aware it has been supposed that in cases decided elsewhere, in one particular, a different doctrine from the above has been stated. Without inquiring whether or not this opinion be well founded, we remark, that a reference to the leading cases is had in the opinion of the court in United States vs. Langton & Trustees, 5 Mason, 284. Whilst these allow of proof, (in cases involving the priority of the United States,) other than the deed, to show that it includes all the property of the grantor, they yet recognize and affirm the principle, that in the case of a conveyance by schedule, “the presumption must be, that there is property not contained in the deed, unless the contrary appears.”

(Decided June 23rd, 1859.)

We do not wish to be understood as saying any particular words are necessary to be used, but only that such must be employed as will convey all the debtor’s property. All that is required is, that the words should comprehend all, and thereby negative every presumption that there is other property. Any words apt to this end will be sufficient. There certainly cannot be any difficulty in finding them in any imaginable case.

Whilst affirming the action of the court below, we deem it but just to say, that we discover nothing in the evidence in this cause, going to show, that the grantor, Mr. Webb, either contemplated or practiced any fraud in fact. This decision rests entirely on the legal presumption which arises out of the language of the deed.

Orders affirmed without costs and

cause remanded for further proceedings.