4 Nev. 124 | Nev. | 1868
Lead Opinion
By the Court,
The facts of this case, so far as material to the points at issue on appeal, are as follows: On the fourth day of March, 1866, defendant executed his promissory note to Mrs. Margaret A. Way-man, or order, for $500 payable one day after date. This note when executed had no stamp attached to it. In July, 1866, Mrs. Wayman departed this life. Subsequently, John H. Wayman administered on the estate of Margaret A. Wayman, and whilst he was acting as such requested the defendant, Torreyson, to affix the proper stamps to the note. This Torreyson did in the month of November, 1866. Afterwards, J. H. Wayman brought suit on the note, and upon his death and the appointment of the present plaintiff as administrator de bonis non, the suit was revived in his name.
Appellant raises several questions as to the character, sufficiency, etc., of the answer of defendant, which it is not necessary to notice here. All the facts necessary for a decision of this case are- set out in the complaint itself. The next point raised by appellant is that the insufficiency of the stamp to be available as a defense must appear on the face of the note. The authorities he quotes to this point held exactly the reverse. Chitty on Bills, page 189, 12 American, 9 English edition, marginal page 119, lays down the rule that an innocent indorser may recover on a note which appears on its face to be properly'stamped, notwithstanding the stamp may have been improperly put on the note after its execution. But no such ruling is pretended to have been made between the original parties to paper thus improperly stamped. On the contrary, Chitty says that it has been held thai inquiry as to when the instrument was stamped is admissible. It is, however, not worth while to waste time in the examination of authorities so totally irrelevant.
Appellant insists that under the law of the United States no note is void for the mere want of a stamp being properly affixed to it, but only so when the stamp is omitted with the fraudulent intent to evade the revenue law. This very point was before us in the case of Maynard v. Johnson, 2 Nevada, 16.
After a rehearing, and a very patient investigation of the whole subject, we came to the conclusion that under the provisions of the law as it stood in 1864 the note was invalid from the simple omission to stamp it. That to render the note invalid it was not necessary that the stamp should have been omitted with a fraudulent intent. We are now asked to reverse that decision on what are claimed to be authorities directly in point ruling the other way. The first authority referred to on this point is Beebe v. Hutton, 47 Barbour, 188. That was decided by a Court which was not the
We have, then, but the ruling of two out of three Judges in one of the New York Courts, and a loose dictum of the Massachusetts Court in opposition to our former decision. Upon such authority we should not be disposed to depart from our former rulings.
But even if we were disposed to yield our own judgment, and conform to the views expressed by the majority of the New York Court, it would not avail the appellant. Both our decision in Maynard v. Johnson and the case reported in 47 Barbour are upon the construction of the law.as it stood in the fall of 1864. In the spring of 1865 there was an amendment, which, we think, disposes of this controverted point. Although the language of this amend- ■ ment is not as clear as it might be, we think it was the intention to make all instruments not properly stamped invalid in the first place, but to allow any person interested to give validity to them by having the proper stamps affixed by a revenue officer, and a note made by such officer of the fact of his having stamped the instrument. It certainly was not the intention of the law to allow the parties thenu selves to make an invalid instrument valid by their affixing the stamp.
A note does not, as between the parties thereto, become of any force or validity by merely writing and signing the form of a promissory note. Before our statute requiring stamps to be affixed to notes, their validity depended upon the fact of their having been delivered upon a sufficient consideration. As the law now stands they must be properly stamped — be founded on a sufficient consideration and delivered. If this note was not properly stamped in March, 1866, the delivery amounted to nothing more than the delivery of a blank piece of paper, or printed form of a promissory note. The whole thing then being a nullity, might not Torreyson have taken it back, stamped it, and delivered it so as to make it a new and good note from the date of the last delivery. Such would appear upon principle to be the correct doctrine. Mr. Parsons, a very able lawyer, in his work on notes and bills, (Vol. 2, p. 17 of Appendix) expresses this view. There is a dictum also to the same effect in the case of Robbins v. Deverill, (20 Wis. 148).
On the other hand the Act of Congress provides specially how a note or other instrument .which is not stamped when delivered may be subsequently stamped and rendered valid. Does not this in effect prohibit its subsequent stamping in any other way ? Would it not be contravening the policy of the law, and opening the door to frauds on the revenue to allow the parties themselves to put stamps on notes and bills, and cancel them at a date subsequent to the writing and first delivery of such instruments. In deeds, mortgages, etc., there would, perhaps, be little opportunity or temptation to commit fraud, for a party wishes such instruments to take effect as valid deeds from the day of delivery. If they were subsequent to the day of execution and first delivery stamped and
This question is one which will certainly admit of a plausible argument on either side, and is not without difficulties in its solution. In this case we think it unnecessary to determine the point. Even admitting that Torreyson by stamping and redelivering this note to Mrs. Wayman during her life might have made it a valid note, it by no means follows that his stamping and delivering the note to John A. Wayman made it a good note. To use a homely, expressive phrase, it takes two to make a bargain. There must be two parties to every promissory note, a maker and a payee. When this note was written there were two persons, W. D.' Torreyson and M. A. Wayman, who were intended to be parties thereto. The note at that time failed of becoming a valid instrument for want of the proper stamp. Afterwards when the note was stamped Mrs. M. A. Wayman had ceased to exist, .and the note as worded was between Torreyson and a person not in esse. Such a note we hold to be absolutely void.
Before leaving this point we will notice such authorities as we have found bearing on the question. In the case of Minnot et al., v. Gibson et al., decided in the Court of King’s Bench, (3d Term, 481) it was. held “ if a bill of exchange be drawn in favor of a fictitious payee, and that circumstance be Tcnown as well to the acceptor as the drawer, .and the name of such payee be indorsed on
Since the case just referred to, it has been held that if the acceptor was ignorant of the fact that the payee named in the bill was fictitious, be would not be bound by his acceptance, even in favor of a bona fide holder. (See Barrett v. Farrell, 1 Camp. 130, 180c.) So if the holder had the same knowledge that the drawer and acceptor had, that the payee was fictitious, the acceptor would not be bound. (See Hunter v. Jeffrey, Peake Add. 146.)z
These cases seem clearly to establish the rule that if one of the three parties to a bill of exchange is fictitious — that is, a party having no real existence, the bill will be utterly void. Such a rule would seem to apply with greater force to promissory notes. A bill of exchange is a peculiar sort of an instrument, requiring three distinct parties to the contract, before it becomes a perfected instrument. Yet two of the parties thereto may contract certain liabilities towards each other before the third party becomes bound by the bill. But in the case of notes there are but two original parties, and we cannot conceive how the instrument can have any effect of legal validity without two living parties thereto — the one who promises to pay and the other who is entitled to recover.
In the case of Murray, Administrator of W. Hope, v. The East India Company, (6 Barnwell & Alderson, 204) suit was brought on four bills of exchange. As to three of them they have no connection with the subject under discussion. The fourth bill was
“ There was a fourth bill of exchange, to which the statute was not pleaded, and which.gave occasion to another'point. Mr. Hope-, at his departure from India, had left some property under the man: agement of an agent. For the value of this, and for the purpose of transmitting the value to England, the agent obtained this bill of exchange, and being ignorant of the death of Hope, indorsed it specially to him. It was urged that no property in this bill could pass to the administrator, and consequently that he could not sue upon it. But we are of opinion, that as the money for which the bill was remitted belonged to Hope’s estate, it was competent to the administrator to elect to take the bill as the mode of payment, and that thereby the property did vest in him, and he acquired a right to sue upon it.”
From the language used in this case, upon mature reflection, we conclude that the Court did not intend to hold that an indorsement to a dead man conferred any right on the administrator, but rather that the administrator, under the circumstances of the case, was entitled to recover the money on the bill, regardless of the irregularity of the indorsement. The former agents of Hope had collected the money after their agency had been terminated by Hope’s death. A presidency of the East India Company in Asia had received the money belonging to Hope’s estate, and to which the administrator of course had title. The London agency of the same Company had accepted a bill for the amount received by their presidency in the East, and this seemed by the Court to have been held sufficient to entitle the administrator to recover.
In one case in the United States, Foster v. Shattuck et al., (2
It has several times been held that a note payable to an estate of a deceased person is not a good note. (See Lyon v. Marshall, 11 Barbour, 241; Kittle v. Thomas, 30 Miss. 122).
A note to the administrator of an estate (when there is an existing administrator) is good because then the payee is properly designated, not by his name it is true, but still by his office. Just so a note payable to the man who lives in a certain house (describing it) would be good if the description of the house were sufficient and but one man lived in that house. But a -note payable to a dead person, or to an estate, is not payable to any particular person, and therefore lacks one of the essential elements of a promissory note, to wit: a payee.
Finally, it is suggested by counsel for appellant that the Court below erred in striking out the evidence of Clayton, because if the note was void the plaintiff might recover on the consideration for which the note was intended to have been given. The latter part of this proposition is true. But the plaintiff could not recover on the original consideration passing between the parties without set- ’ ting out that consideration in his complaint. There is not a word of the kind in the complaint. Besides, Clayton in his evidence did not pretend to know or say a word about the original consideration for the note. He only testified as to promises of defendant in relation to the note, and general declarations that the note was good. Judgment affirmed.
Concurrence Opinion
At the time the note was issued, March 4th, 1866, the Revenue Law of June 30th, 1864, as amended by the Act of March 3d, 1865, was in force. Section 158 of t'he Act, when so amended, read as follows : “ That hereafter in all cases where the party has not affixed to any instrument required by the one hundred and fifty-first section of the Act of June 30th, 1864, or the schedule marked B, thereunto annexed, the stamp thereby required to be thereunto affixed at the time of making or issuing the said instrument, and he, or they, or any party having an interest therein shall be subsequently desirous of affixing such stamp to said instrument, he or they shall appear before the collector of the revenue of the proper district, who shall, upon the payment of the price of the proper stamp required by law, and of a penalty of fifty dollars, and where the whole amount of the duty denoted by the stamp required shall exceed the sum of fifty dollars, on payment also of interest, at the rate of six per cent, on said duty, from the day on which such stamp ought to have been affixed, affix the proper stamp to such instrument, and note upon the margin of said instrument the date of his so doing, and the fact that siich penalty has ‘ been paid, and such instrument shall thereupon be deemed and held to be as valid, to all intents and purposes, as if stamped when made or issued; and, provided further, that when it shall appear to said collector, upon oath or otherwise, to his satisfaction, that any such instrument has not been duly stamped at the time of making or issuing the same, by reason of accident, mistake, inadvertence, or urgent necessity, ■ and without any willful design to defraud the United States of the stamp duty, or to evade or delay the payment thereof, then and in such case, if such instrument shall, within twelve calendar months after the making or issuing thereof, be brought to the said collector of revenue to be stamped, and the stamp duty chargeable thereon shall be paid, it shall be lawful for the said collector to remit the penalty aforesaid, and to cause such instrument to be duly stamped.”
When the amendment was adopted, the only authority contained in the Act whereby an instrument unstamped when issued could
It was shown at the trial, as stated in the opinion of the Chief Justice, that the note was not stamped when issued; that in November, 1866, Torreyson, the maker thereof, when requested to do so by the administrator, affixed to it the requisite amount of stamps, but without authority of the Revenue Collector of the District, and that the omission of the stamp in the first instance was not with an intent to evade the provisions of the Act. These facts,- with the pleadings, bring up the main question in the case, whether such stamping was sufficient to entitle the plaintiff to maintain an action upon the note.
Upon the construction given to the amended law, I concur in the conclusions reached in the foregoing opinion. The correct view, in my judgment, is there taken, “ that it was the intention of the law to make all instruments, not properly stamped when issued, invalid,” and none such could become valid except in the way pointed out in Section 158. The authority to permit such an instrument to be stamped is lodged exclusively with the Revenue Collector; and he is furthermore constituted the sole judge as to whether the stamp was omitted “ with intent to evade the provisions of the Act.” Primarily, in all cases of an unstamped instrument the penalty attaches, and the amount thereof, in addition to the stamp duty, must be paid to the Collector before it can be lawfully stamped, subject, however, to a remission of such penalty by the'
Allow that the administrator, under existing circumstances, has the same right to maintain an action on the note, as he would have if the entire transaction had occurred between Torreyson and Mrs. 4 Wayman; that Torreyson had stamped the note and redelivered it to Mrs. Wayman under precisely the same circumstances; yet the principal objection is not removed — that is, that the note ivas never lawfully stamped. The omission of the stamp rendered the note invalid and of no effect, and the penalty at once attached. The consequence of such infraction of the law could only be avoided- in the way pointed .out by the law. A subsequent stamping and redelivery by the party was not a compliance with, but an attempted evasion of the law, and neither relieved from the penalty nor gave validity to the transaction. There was no pretense of making a new contract, as the parties were at liberty to do by the execution and acceptance of a new note; but the acts done simply show an intention to legalize a past and invalid -contract in an unlawful and unauthorized manner, and of a consequence, no new or additional legal obligation was created. •
The Revenue Act had opened the way to the parties to consummate their first intent — to make valid the obligation of the maker of the note to pay it according to its terms. The way pointed out was not pursued, and whatever may be the equities existing between Torreyson and the estate of Mrs. Wayman, it is not the province of the Court to set aside a certain provision of the tax-law for the purposes of such inquiry.
Upon the argument appellant’s counsel complained of certain alleged irregularities in the clerk’s office, by which he was prevented from taking a default and judgment when entitled to it. I have looked into the record, but find nothing by way of a statement or bill of exception covering the ground of complaint in this particular, and therefore it cannot be inquired into on this appeal.
I concur in the judgment of affirmance.