Balt. & Ohio Rail Rd. Co. v. Glenn, 28 Md. 287

The bill in this case was filed in the Circuit Court of Baltimore city, on the 6th of October, 1866, by the appellee, against The National Express and Transportation Company, John Blair Hoge, John J. Kelley and C. Oliver O’Donnell, Trustees of said Express Company, the Baltimore and Ohio Eail Eoad Company, and the Bank of Commerce, on behalf of himself, and such other creditors of the said Express Company, as might become parties to the suit, and agree to contribute to the costs of prosecuting the same. The bill charged that the National Express and Transportation Company, a bpdy politic and corporate of Virginia, by deed dated the p. 28920th of September, 1866, conveyed to the said John Biair Iloge, John J. Kelley and C. Oliver O’Donnell, all the estate, property, rights and credits of every kind, including calls or assessments on stock of the said company, in trust, among others, that the trustees should permit the grantor to remain in the possession and use of all the property therein granted or assigned, except debts, claims and moneys, payable, until the first day of November, 1866, and thereafter until the trustees should ho requested by one or more of the creditors, secured by said deed, and whoso debt or debts should then he due, to take possession of such property; with authority to the trustees to take possession thereof, at any time after the date of the deed, if requested so to do by the board of directors of the said grantor; and further, that out of the trust funds, the trustees should pay all debts then due, or which should become due from the grantor to its officers or employees for their services as such, on or before the said first day of November, 1866, or such previous time as the trustees should he required to take possession of the property conveyed thereby; and further that the trustees should pay out of the trust fund, in ratable proportion the two debts due by the grantor; one to the Baltimore and Ohio Bail Boad Company, and the other to the Bank of Commerce; and further, ratably, the balance of all debts for which the grantor should become liable to any rail road companies for transportation of express matter, from the date of said deed to the said first day of November, 1866, over and above the net receipts for such transportation; the said grantor reserving to itself all tolls and compensation accruing for the transportation of express matter, not yet delivered to consignees nor yet transported, although under existing contracts.

The bill further charged that the said express company was largely indebted to the said Glenn, for money loaned by him to said company, as also for obligations incurred by him for said company; and further, that an agreement was entered into between him and said company, on the 9th August, 1866, p. 290whereby upon certain conditions, he agreed to extend the time for the payment of its indebtedness to him for money loaned; that said company did not comply with any of said conditions; and that the execution of said deed of trust was a violation of said agreement, and should not be permitted to stand to the injury of the rights of the said Glenn. The bill further charged that the said Glenn had sued out a writ of attachment, against said company in the city of Baltimore and in the District of Columbia, and caused the same to be levied upon the property of said company, but that the property so levied upon was wholly inadequate to satisfy his claim against said company; and that the said deed of trust was fraudulent and void, and ought to be so declared. The bill asked for an injunction to restrain the express company and the trustees from disposing of, or conveying any of the property embraced in the said deed of trust, and from applying any part of said property to the purposes mentioned in said deed, or from suffering or permitting said property to be used by said company, in the manner provided in said deed. The bill also asked for the appointment of a receiver. An injunction was issued in conformity to the prayer of the bill, on the 6th of October, 1866.

The Express Company, among other things, admitted that it was a body politic and corporate, chartered, organized and existing by virtue of the laws of the State of Virginia, and of no other State; that it was indebted to the said Glenn for money lent to it, and paid for it to the amount of twenty-one thousand and five hundred dollars, with interest, as alleged in the bill; but whether the same or any part thereof was then due, or at the time when the suit was instituted, or when the appellee sued out his attachment, against the respondent in Baltimore, it submitted to the judgment of the Court; it admitted p. 291the execution of the deed of trust of the 20th of September, 1866, but denied that it was done Avith any design to delay, hinder or defraud creditors or with any other fraudulent purpose whatever; on the contrary, that it was done with a bona fide purpose to make the most effectual and equitable provision for the payment of all its creditors that was then practicable ; it insisted that the deed itself, if considered with reference to the nature and necessary operation of an Express Company chartered in Virginia, and carrying on an express business in Virginia, Maryland and other States, would appear on its face to have a purpose consistent with justice and the rules of law in all its provisions; that the preference given to employees of the company, so far from indicating a fraudulent purpose, was justified by equity; that, given to the Baltimore and Ohio Rail Road Company and the Bank of Commerce, was a more convenient substitute for a preference which they already held, and in fulfilment of a pledge given to them; the provision for paying employees and rail road companies for services to be rendered during a short period after the deed was made, was a necessary part of the provisions for the winding up of the affairs of the company in a manner beneficial to its creditors, and allowing the stockholders an opportunity to pay them speedily by hastening the discharge of their own obligations or otherwise; while the sums due and to become due from the stockholders were immediately appropriated by the deed to the use of the creditors; the possession of the property was reserved for a brief period to the company as part of the same general design ; that the deed was not made in contemplation of insolvency, nor was the respondent then insolvent. The total amount of its liabilities was about two hundred and seventy-five thousand dollars or rather less. It owned property w7hich had cost over two hundred thousand dollars, and Avhieli, unless forced to sale under unfavorable circumstances, Avas AA7orth that sum. There was due to it ■ from stockholders in calls or assessments already made, over two hundred thousand dollars, the most of Avhieli was due p. 292from solvent persons, and there remained eighty per cent, or over three millions of dollars, liable to be called for on the subscription of. stock; it further alleged that the said deed of trust was valid, and would have been valid under the laws •of Maryland, if it had been made in said State by a corporation of said State, not only as between the parties thereto, but as against the appellee and all other persons claiming adversely to the same; that the said deed was executed in Virginia, that it conveyed no real estate except one small parcel in that State; that it was duly recorded according to the laws of that State before the appellee sued out said attachment ; that neither said deed nor any of its provisions, parts or clauses, was contrary to the laws which were in force in the State of Virginia, when it was made, and ever since, but according to those laws the said deed was and is valid and effectual to all intents, not only as between the parties thereto, but as against creditors and all other persons; it further insisted that in the Courts of Maryland all questions respecting the legality, validity, operation and effect of said deed as to personal property thereby conveyed or assigned, or purporting to be conveyed or assigned, should be decided according to the laws of Virginia, even though such property may have been found and attached in this State at the suit of a citizen of Maryland, and that the title of the assignees or trustees named in said deed is superior to any lion, right or claim of the appellee by virtue of his attachment or otherwise; that the making of said deed was not inconsistent with the rights of the appellee under the agreement of the 9th of August, 1866, nor with any lights which he had as a creditor at or before the making of that agreement.

The trustees, in their answer, alleged that they had been prevented from proceeding effectually to execute the ¡trusts confided to them by the deed of trust, in consequence of the injunction issued in this cause, and legal proceedings elsewhere; but asserted theit readiness to carry the same into execution whenever permitted. They insisted that the app. 293pointment of a receiver was wholly unnecessary for any purpose; that while a receiver appointed in this State would have no authority to act in other States, any order depriving them of power to execute the trust confided to them in other States, would be the probable cause of heavy losses to the trust, would destroy the only means of winding up the affairs of the Express Company under a single administration, extending to all the property and all the creditors of the company, to all the liabilities of stockholders, and would delay indefinitely the final settlement of its affairs. Glenn moved for the appointment of a receiver, and by consent of the solicitors of the respective parties, said motion as also the motion for the dissolution of the injunction, were set down for hearing on the same day. The Baltimore and Ohio Rail Road Company had not then answered the bill, but its solicitor was notified of the motion, and declined to take part in the proceedings at that time. The Court on hearing the two motions, passed an order on the 15th of December, 1866, continuing the injunction and appointing Thomas G. Pratt, receiver. Sometime afterward, the Baltimore and Ohio Rail Road Company filed its answer, in which, among other things, it alleged that the Express Company was indebted to it in a large amount for the transportation of the express matter of that company, and insisted that the deed of trust executed by the Express Company was, according to the laws of Virginia, effectual to convey all the estate, property and effects which it purported to convey, and there was nothing on the face or in the provisions thereof) which according to the laws of said State, rendered it void, or in any manner fraudulent, invalid or ineffectual as against the creditors of the Express Company, or any other person whomsoever, and (the grantor having no real estate in Maryland,) it was therefore effectual and valid in said State, and elsewhere. It renewed the motion to dissolve the injunction and discharge the receiver. The Bank of Commerce filed its answer, substantially acquiescing in the prayer of the bill. After the filing of the answer of the Baltimore and Ohio Rail p. 294Road Company, commissions were issued, and testimony was taken thereunder, on both sides. The motion of the Rail Road Company was, by an order of the 3d of May, 1867, overruled. The receiver, in the discharge of his duty, sold all the property of the Express Company which came to his hand, and made report- thereof to the Court, and various proceedings were had, from time to time, in reference thereto.

The principal question in this case is, whether a deed of trust by the National Express and Transportation Company is valid p. 295as against- creditors, and particularly as against the appellee, Glenn ? It- is not alleged, nor pretended, that the deed was made with a fraudulent intent. Still less is it pretended, that the trustees, or the creditors secured, were privy to a fraudulent intent. But- it is alleged that the deed is invalid by reason of certain provisions in it — fraudulent in law — fraudulent and void on its face. If it had been made with a fraudulent intent, in which the grantees and beneficiaries were implicated, it would be invalid according to the law of every State and every country. But the objections to the deed are not grounded on actual fraud alleged, but on certain rules of law which its provisions are said to violate. The deed was made in Virginia, by a corporation chartered by that State only, and operated in Maryland on personal property alone. The questions as to the validity of the deed, and its efficacy to transfer personal property every where, must be determined by the law of Virginia, that being both the place of the grantor’s domicil and the place where the deed was made. Wilson & Co. vs. Carson & Co., Garn. of Webb, Maxcy & Co., 12 Md. Rep., 54; De Sobry vs. De Laistre, 2 Har. & John., 191; Black vs. Zacharie, 3 Howard, 483, 514; Story’s Conf. of Laws, secs. 263, 362, 376, 379, 380, 383, 411; Dundas vs. Bowler, 3 McLean, 397; United States vs. U. S. Bank, 8 Rob. La. Rep., 262, 402, 414; Richardson vs. Leavitt, 1 La. Annual Rep., 430; Burlock vs. Taylor, 16 Pick., 335; Trasher vs. Everhart, 3 G. & J., 244; 2 Kent’s Comm. 254.

If there were any property, debt or claim in Maryland on which the attachment had not been actually levied, Glenn had it in his power to secure the whole by an attachment at law. His bill in equity could only have been necessary to reach property not in Maryland. For that purpose he asked p. 297the Court to decide, and tlie Court did decide that the deed of trust was void, not only as to property in Maryland, and as against creditors residing in Maryland, but as to all property and in all places.

It is proved by the depositions of several eminent lawyers of Virginia, that, according to the law of that State, this deed is valid. If this deed is to be judged by the law of Maryland, still it is valid. It exacts no release from any creditor. This distinguishes it from the deeds which (being somewhat like it) have been held invalid by the Courts of Maryland, except that in Inloes, Garn. of Turnbull & Co. vs. American Exchange Bank, 11 Md. Rep., 173, and there the Court said that the p. 299question as to the effect of not' requiring a release was not raised, and that, in this respect, the decision was not to he taken as a precedent. In Green and Trammell, vs. Trieber, 3 Md. Rep., 11, the creditors were required to give up their right to sue the debtor for a long time; and this in principle, was equivalent to requiring a release.

Finally, where the provisions of a deed of trust, even though it is a general assignment and exacts a release, appear to have been fairly designed to facilitate the winding up of an extensive and complicated business, and in that way may be beneficial to creditors, they do not invalidate the deed, although they are such as would otherwise be more objectionable than any in the deed now in question. American Exchange Bank vs. Inloes, Garn. of Turnbull & p. 300Co., 7 Md. Rep., 380; Inloes, Garn. of Turnbull & Co., vs. American Exchange Bank, 11 Md. Rep., 173; Marks, et al. vs. Hill, et al., 15 Grattan, 400.

But, unless they have a lawful right to make the conveyance — so that, if they made it voluntarily, it would be effectual — the doctrine has no application; nor can any practical object be obtained by compelling them to convey. Supposing these trustees to have conveyed all the property to the receiver, either voluntarily or on compulsion, no title in the receiver could be shown in another State, because it would apppar there that the conveyance to him was not authorized by the deed of trust — in other words, that his grantors had no right to convey to him. This defect could not be supplied there by invoking the authority of a Maryland Court; for, if that Court, in directing the conveyance, also conferred the power to convey, the title would depend on the authority of the Court, and would be no better than the title which the Court could confer on the receiver without a conveyance. But, if the order of the Court would avail to eke out the title in another State, the production of its decrees would show that it had annulled the deed of trust, leaving the trustees no title to convey, if either could the corporation make a valid conveyance, to the receiver, having already conveyed to the trustees; and this difficulty could not be removed by any means that would avail beyond the jurisdiction of the Court. The irregular and futile attempts of the Court to procure a deed from the corporation to the receiver, only served to illustrate the fallacy of the idea on which the Court proceeded from the beginning, in attempting to control the property beyond its jurisdiction. If the p. 302Court having the trustees before it, had proceeded to enforce the deed of trust, it might have compelled them to make any transfer or disposition of property in 'other States, that was necessary for the fulfilment of the trusts. It could compel them to exercise powers which they had, but could not (out of its jurisdiction) confer on them a power which they had not; nor could it, through them, control property abroad in any way except according to the deed of trust.

Except in these extreme cases of mere sham deeds, the Courts of Virginia have refused to pronounce deeds of trust void, on account of any reservation of possession or interest to the grantor. They have in a great variety of such cases, acted upon the view that neither such reservations, nor a provision for returning the surplus to the grantor, operates to p. 304exempt any portion of his property from his debts. “The surplus is rightfully his property; every thing not embraced by the conveyance belongs to him for the benefit of his creditors ; is liable for his debts. * * * * Such a deed may interpose obstacles to the legal remedies of creditors for an indefinite period of time. But the interest of the debtor would still be subject to his debts, and could be reached, if not by legal process, by a proceeding in chancery.”' Dance, et al. vs. Seaman, et al., 11 Grat., 781.

Now the object of these provisions is easily to be inferred from the nature of the company and its business, and from the general scope of the deed. For the immediate security of the debts, (about $275,000) the trustees were put .in instant possession of the credits assigned, (over $3,000,000) and ternp. 307porary possession was retained of horses, wagons, &«,, necessary for transportation, in order that existing engagements of the company for transportation all over the country might be fulfilled, and its business wound up without loss to creditors or others interested in the trust fund. For that purpose it was necessary to retain officers and agents and to obtain the services of rail road companies; but the services of officers, agents and rail road companies could not be procured (after the deed was made) unless payment was assured to them. This arrangement was limited to a very brief period, and might be terminated sooner if the board should find it unnecessary to continue it. Not only by this limit of time but by the definite description of the objects of expenditure, it was made certain that the amount which could thus be drawn from the trust fund (if any) could not be large; while a sudden stoppage of the business for want of such provisions^ must have greatly increased the liabilities of the company and of the trust fund.

As to a receiver with extra-territorial powers: The case of The State vs. N. C. Railway Co., 18 Md. Rep., 216, confirms several views of the appellants. It was a proceeding to carry into effect a mortgage held to be valid, and covering a rail road that extends through Maryland into another State. The corporation was chartered by Maryland as well as Pennsylvania. The Court said, in effect, that the corporation has two domicils, each determined by the place in which it p. 308was chartered: “ that it must, for the purpose of justice, be treated as a separate corporation * * a domestic legal entity to the extent of the government under which it acts, and as a foreign corporation as regards the other sources of its existence.” Thus through a domestic corporation and a mortgage which was to be enforced (not annulled) the Court might have controlled property in the other State; but the Court spoke very cautiously as to the poAvers of the receiver even in such a case, and said “the consideration that the authority of this Court cannot extend beyond the territorial limits of the State in the exercise of its remedial poAver, does not deter it from acting in a case within its acknoAvledged jurisdiction, to the verge of those limits.”

The deed of trust is \roid, under the laws of Maryland, as against all the creditors of the National Express Company. The deed purports to be a conveyance of all the property of the Express Company for the benefit of its creditors, and creates certain preferences. The first reservation is for the use of the grantor, and enables it to enjoy its property under p. 309the title of the trustees, from the 20th of September until the 1st of November, following, and longer, if the trustees be not required to take possession. The fifth reservation requires the trustees to pay out of the trust fund all debts that shall become due from the grantor to its officers and agents, from September 20th to November 1 st, while it is thus using its property under the first reservation. The eighth reservation requires the trustees to pay out of the trust funds all debts which the grantor may incur to rail road companies for transportation, from September 20th to November 1st, over and above the net receipts for such transportation. And the same clause reserves to the grantor absolutely, all tolls and compensation for the transportation of express matter, not yet delivered to consignees, or not yet transported, although under existing contracts. The effect of the fifth and eighth reservations taken together is, that all salaries of officers and agents, from September 1st until the trustees take possession, shall be paid from the trust estate, as also all dues to rail road companies for transportation during that period, after applying to the latter the net proceeds arising from such transportation, and as to all receipts from existing eonbmets for carriage, the grantor shall have them absolutely, although the trust-estate is charged, with all the expenses incurred in executing these contracts.

But it is contended that, as the grantor is a Virginia corporation, the deed having been executed in Virginia, must be*" p. 310construed by the laws of that State, and is valid under those laws. The first question presented is, whether this is a case for the application of the principle that the lex loci contractus shall determine the validity of the deed. It is in evidence that the National Express Company, previous to the assignment, had its principal office in the city of Baltimore, and exercised its franchise in this State, where the grantees also resided. Speed vs. May, 17 Penn., 95.

But the rule of comity itself does not extend so far as to uphold this deed. A foreign law is inadmissible when it is contrary to the known policy, or injurious to the interests of this State, or contrary to its positive law. We maintain that the foreign law can only be applied in the Courts of this State, in the absence of any positive rule affirming, denying,' or restraining the operation of any foreign law. Black, et al. vs. Zacharie & Co., 3 Howard, 514; Wilson & Co. vs. Carson p. 311& Co., Garn. of Webb, Maxcy & Co., 12 Md. Rep. 54; Gardner vs. Lewis, 7 Gill, 392.

It will be seen that all the witnesses concur that the retention of an interest or control by the grantor over the property p. 312conveyed by a trust deed, does not, per se, under the law of Virginia, invalidate the deed. But it will also be seen that these witnesses say that such a retention of control must be consistent with the avowed objects of the deed, and for the benefit of the creditors, and not for that of the grantor. It will also be seen that these witnesses had nothing before them to enable them to ascertain the object of the retention of possession by the grantor in this deed, except the deed itself, and the fact which they assumed from the character of the grantor’s business, that the retention of possession was to enable the grantor to wind up its business with the least loss.

'2d. That even if this Court should decide that they are correct in their view of the intent of these provisions as p. 316gathered from the deed itself, yet if extraneous facts, to which they admit reference may be made under the law of Virginia, to show the actual intent of provisions seemingly legal, would show that the intent in this case of those provisions, was not what it appears to be on the face of the deed, and those facts were not made known to the witnesses when examined, this Court may consider their testimony in the light of those facts, now made known to it, and from them in connection with the provisions of the deed, ascertain the actual intent of the grantor.

We must then consider in the first place, whether the; witnesses have properly interpreted the object of the objectionable provisions of the deed. That is not a question of Virginia law, but a question of the interpretation of language. We consider that if the retention of possession by the grantor, and the power to charge the estate with debts incurred by the grantor during such retention of possession, is, on the face of the deed, designed for the benefit of the cestuis que trust, the case of Marks, et al. vs. Hill, et al., 15 Grat., 408, and the other cases cited by the appellants, show that such a retention and power, are not inconsistent with the avowed objects of the deed, and do not invalidate it on its face. But we contend that on the face of the deed, the witnesses are mistaken in their construction. We maintain that the power of control reserved by the grantor in this case, was not for the benefit of the trust estate, was not in accordance with the avowed object of the deed, but went beyond that object, and gave the grantor, under cover of the deed, the power to continue a losing business at the expense and risk of its creditors. The deed provides not only for finishing incomplete contracts for transportation, which it might legally have done, but it provides for new contracts to be made, new risks to be incurred after the execution of the deed, at the expense of the estate, and at the risk of the creditors. Nay, more, it shows that the grantor expected that these new contracts would be p. 317attended with loss, for it provides that after applying the receipts therefrom to the payment of the expenses incurred, the trustees shall pay the balance of debt so incurred, out of the other property of the estate, before paying its debts at the date of the deed, with two exceptions.

But if there be a reasonable doubt as to the intent of the grantor in this provision, on the face of the deed, it is removed by the extraneous evidence to which the witnesses had no access, but to which they testify the Court may resort. That evidence abundantly shows that the grantor intended by this deed, not to devote its property honestly and bona fide to its creditors, as avowed in the deed, but, to get time, to delay its creditors, to hinder them in asserting their rights, in order that the grantor might be enabled to make another p. 318effort, at their risk and expense, to retrieve its credit, and re-establish its business. The proceedings of the grantor, after making the deed of trust, remove all doubt upon this point. And if such were the object of the deed, however honest may have been the expectation of success, the deed is a deed to hinder and delay creditors, it does coerce extension, it is inconsistent with the avowed object of the grantor, is fraudulent in law, and void; void in Virginia, void everywhere. The intent to delay is all that the Court looks at, without regard to the actual length of the delay, whether long or short. Dance, et al. vs. Seamen, et al., 11 Grat., 782; Quarles, et al. vs. Kerr, et al., 14 Grat., 58.

The able argument of the counsel, on both sides, in this cause, has been mainly directed to the consideration of the validity and effect of the deed of the 20th September, 1866, made by the Express Company to the trustees. The invalidity of this instrument is the sole reliance of the complainant, upon which all the other proceedings depend. Our conclusion upon that proposition will dispose of this appeal. The question is one of much importance, and having been re-argued, has been examined with more than ordinary care. The bill of complaint, the deed itself, the agreement of counsel filed, the proceedings and testimony, all represent, that this Express Company is a body politic and corporate of’ the p. 319State of Virginia. The deed purports to have been signed by Jos. E. Johnston, President of the Company, by virtue of authority, vested in him by an order and resolution of the Board of Directors of the Company, and that he affixed the common seal of said corporation to the deed, as the act of the corporation. The agreement filed further admits, that the office of the President of the Company has been kept at Eichmond; that the deed was executed there and admitted to record, according to the law of Virginia. It further admits, that at the time of the execution of the deed, and for several months previously, the company had an office in the city of Baltimore, at which the offices of its Treasurer and General Superintendent were kept, and a large amount of the general business transacted.

It was urged, in the argument for the appellees, that the company by transacting business, having an office, and its Treasurer and Superintendent here, acquired a habitation at the same place. This could make no difference, if not only those offices, but the office of the President also had been here. They were but the agencies of the corporation. In the same case, Bank of Augusta vs. Earle, the doctrine is plainly announced, that “although it (the corporation) must live in that State only, (the State from which its charter is derived) there is no insuperable objection to its power of contracting in another. Katural persons, through the intervention of agents, are continually making contracts, where they do not reside, and what greater objection can there be to an artifip. 320cial person, by its agents, to make a contract within the scope of its limited powers, in a sovereignty in which it does not reside; provided such contracts are permitted to be made bjr the laws of the place.” Art. 75, secs. 99 to 104, Art. 88, secs. 33 to 44, of the Code of Public General Laws, provide for enforcing process against the agents of a corporation having existence beyond the State, but holding and exercising franchises therein, thus recognizing their authority to transact business here. Natural persons having no residence here, may have dealings through their agents, but that gives them no domicil here, much less a corporation, whose corporate franchises being against common right, are construed more strictly; natural persons may change their domicil, not so with corporations, who have a stationary habitation and can only have transactions, from their home, through their agents. Personal and individual rights are original, whilst the powers of a corporation are derivative and prescribed by their charters.

The authority in 18 Md. Rep., 213, State vs. Northern Central Railway Company, relied upon by the appellees to sustain their view, that the company doing business here, must be considered as having a domicil here, we think sustains our conclusion. In that case the corporation held its existence by two charters from different States, or its existence in part from a charter of another State. “ Such a corporation must, for the purposes of justice, be treated as a separate corporation by the Courts of each government, from which it derives its being, that is, as a domestic legal entity, to the extent of the government under which it acts, and as a foreign corporation, as regards the other sources of its existence.” This is in accordance with the principle we have stated, because having two charters, it is as to eacli distinct, and is treated in each State, giving it being, as a legal entity. If this corporation held a charter from the State of Maryland, it would have a domicil here to the extent of that authority. But deriving its charter from Virginia alone, that State must be p. 321be esteemed its domicil exclusively. It could, not reside here and in Virginia at the same time under the one charter.

Transfers of personal property within our limits, belonging to parties abroad, may be made according to the foreign law, where our own citizens, in transferring similar property, are required to conform to our laws regulating such transfers. Wilson & Co. vs. Carson & Co., Garn., 12 Md. Rep., 54; Houston vs. Nowland, 7 G. & J., 480. The case of Gardner vs. Lewis, 7 Gill, 377, was between citizens of Maryland, who had gone outside of the State and made a contract, and there was no evidence of what was the foreign law, and therefore the law of Maryland was the only one to be applied. In Green and Trammell vs. Treiber, 3 Md. Rep., 28, the deed was set aside as being contrary to the law of Maryland, having been executed by parties in the State of Virginia, but there was no evidence of what was the law of that State. It is not materia] in this enquiry to define what would be our construction of such a deed as this, if made here according to our views of the statute of 13 Elizabeth, ch. 5, because, having been made in Virginia by a corporation having its domicil there, its validity must be determined according to that law. The deed has been assailed by the bill of complaint, as fraudulent upon itsfaee, and because of its alleged illegal reservations and preferences. Because it reserves a use to the p. 323grantor, to hold the property under the title of the trustees, from the 20th of September to the 1st of November, ensuing, if the trustees be not required to take possession. Because it requires the trustees to pay out of the trust fund, all debts that shall become due from the grantor to its officers and agents for a like period. Because it requires the Trustees to pay out of the trust funds, all debts which the grantor may incur to rail road companies, for transportation from September 20th to Kovember 1st, over and above the net receipts for such transportation. Because it reserves to the grantor all tolls and compensation for the transportation of express matter not yet delivered to consignees, or not yet transported under existing contracts.

From the purport of these decisions, we do not perceive that the law of Virginia is different, from the exposition of it, by the testimony of the experts. The Virginia doctrine, as to the construction of this celebrated statute of 13 Elizabeth, ch. 5, amounts to this, that the presumption of fraud to be deduced from the face of a deed, where its provisions may p. 326be explained as consistent with good faith, is discountenanced if not exploded.