,
THE FLAyILLA.
399
the result; and that it was thenimpossi1:JlE) forthe tug,byany change of her own, to have escaped. The heavy logs lashed to her sides necessarily prevented any rapid maneuvering. Thop.gh the want of a proper lookout was reprehensible, l,am 'satisfied that in this case it in no way contributed to the collii?ion. , The tug was moving at 'about half the rate of the Bermuda. Had she been unembarrassed by anything lashed to her side, she edly could have been quickly handled, and might have got out of the way. It is probable that those on board the Bermuda did not see the heavy logs which embarrassed her motions until they had nearly reached her, and that they supposed she would, therefore, get out of the way at the last moment, by a rapid maneuver, which small are easily able to make, and that there was no need of observing the strict rules of navigation. As the tug was, however, incumbered by the logs in tow, so as to be almost as unwieldy as the steamer herself, the latter must bear the consequences of hel' mistake, if that was the rei stake, in assuming that the rules might be neglected with impunity. Decree for libelants, with costs.
THE FLAVILLA. 1
GILL V. PACKARD.'
(Oircuit OOU1't, E. D. Louisiana.
June, 11383.'
OF PnOPERTY WIIILE, IN CUSTODY.
Where a res is seized by judicial process in admiralty for a d·ebt, wnich cut'ries with it ajus in j'e, as between debtor and creditor, the destruction of the seized property, without fault of the debtor, works a payment of the dcut to the extent of its value. The destruction of the debtor's property under such circumstances operates as a payment up to its vahle, precisely as would its sale and the application of its pro.cecds. Unless there was a residuum of value over and above the valid claims rightfully interposed against the. res, its destruction worked no injury and gave the owner no right of action. '
The defendant, S. B. Packard, when United States marshal of the then district of Louisiana,' seized' the under an a'dmiralty warrant issued by the district court. In the admiralty aotion, in due time, a default was entered, and thereupon a decree condemning the vessel for a number of claims, aggregating more than her value. A writ of venditioni exponas was issued to the marshal, and pending proceedings thereunder the vessel sank and became a wreck, which was sold under the writ for a trifling amount. This suit was brought against the marshal by the owners of the Flavilla for her value, and 1
Heported by Joseph P. Hornor, Esq., of the Hew Orleans bar.
4.00
FEDERAL REPORTE&
a peremptory exception: of no cause of action was filed for the defend.; ant. In Admiralty. JVm. F. Mellen, for plaintiff. J. R. Beckwith, for defendant. BILLINGS, J. This cause having been heretofore submitted upon the peremptory exception to the petition and amended petition, and the same having been duly considered by the court, the court declm'es1. That it appears that the vessel, which is alleged to have been the property of the plaintiff, for the destruction of which damages are sought to be recovered, had been seized under a in rem, and that the claims of the libelants and the intervenors in said proceeding, which were asserted in and upon said vessel, were largely in excess of the value of said vessel as sta te(l by the petitioner; and that it is not stated in said petition that there was any value to said vessel above the amount of said claims so made and binding; nor is it denied that all of said claims were valid. 2. That where a res is seized by a judicial process for a debt, which carries with it a jus in re, as between debtor and creditor, the maxim domino pel'iit res means that the destruction of the seized property, without fault of the debtor, works a payment of the debt to the extent of its value. Where third parties voluntarily join the seizing creditor in his proceeding, and unite, so to speak, in the seizclaims which carry with them liens, the destrucure, also tion of the property without fault of the debtor works a payment of their respective claims to the extent of the value of the property destroyed in the order of the priority of their claims; that the destruction of the debtor's property, under such circumstances. operates as a payment up to its value precisely as would its sale and the appli" cation of its proceeds. 3. And, consequently, that unless there was a residuum of value over and above the valid claims rightfully interposed against the res it p{lr;,shed for the owners of them, and its destruction worked no injury and gave no right of action to the plaintiff. It is, tberefore, ordered, adjudged, and decreed that the said peremptory exception is and valid in law; that it be maintained; anu that the petition herein be dismissed at the cost of the vlaintiff.
MYERS V. REED.
401 and another.
1.1"YERS
and another v.
REED
(Oircuit Court, D. Oregon. 1. CONVEYANCE TO HUSBAND AND ·WIFE.
August 8,1883.)
At the common law a conveyance to husband and wife, as such. made thr.m tcnants by entirety, and neither could dispose of the estate thus conveyed without the consent of the other; but upon the death of either, the survivor was the sole owner of it.
2. Prior to June, 1863, if then, or even since, this common-law rule was not changeJ. or modified in Oreson. 3. LAW OF 'fIlE STATE.
The common anJ. statute law of the statc, as expounded by the settled dccission of its highest eourt, furnish the rules that govern the descent and alienation of real property therein, and the eJIect and construction to be given to conveyances thereof.
4.
QUI'J'CI,ADI, OR DEED OF BARGAIN AND SAU,':.
A quitclaim, or deeJ. of bargain ani sale, by an occupant of thc puhlic land in Orugon before he became a settler thureon under the donation act, passeJ. only the possession, and does not a,Icet an after-acquired estate in the same premiscs unrler the donation ac, or otherwise. 5. PURCHASE OF ADVERSE TITLE nY CO-TENANT.
In the case of a co-tenancy arising by de.'cent, devisc, or one'conveyance, the purchase of an adverse title by one of the co-tenants will generally inure to the benefit of the other tenr.nts; 11l\' 'n the c,lse of a mcre tenancy in common, this dcp"nds upon the clrcum,tances of the case, as that Ihe co-tenant used the co-tenancy, or the title, right, or claim under which it exists, or is claimed to exist, to acquire s\lch mlv.:r:;e title.
6.
S.UIE-By TENANT FOR LIFE.
Suit in Equity to Declare a Trnst in Real Property. William B. Gilbert, for Thomas N. St1'OlIg, for defendants. DEADY, J. The plaintiffs, citizen of New York and Connecticut, re. spectively, bring this suit against the defendants, citizens of Oregon, to obtain a conveyance to them of t he undivided four-ninths of the north half of lot 4 in block :;'0 of COllch's addition to Portland, alleging that the same is worth "at least $.1000." 1'he case was heard upon a demurrer to the bill. From th,) \: tter it appears that on February 16, 1860, William Baker, Robel t I' ttock, and Tobias Myers were in the possession of the premis's, cla.lming each to be the owner of an undivided third thereof, under allll by yil'tue of a conveyance from John H. Couch and Caroline, bis wife, in 1850, to George Flanders, and snnary mesne conveyance" thereunder; that at the date of such conveyance said Couch and wife \\ere occupants of a tract of the public land, including the premisps in question; that in 1871 the widow and heirs of said John H. "made final proof of his settlement" Upon said tract as a donation claim, and on November 13, 1871, a patent issned to t1wm for the same, whereby the south half thereof, v.17,no.5-26