W.:a:'COVE.
587
ought to be precluded from testing it again on the same issue against the agent. F)m'lTUJ, Silver Mining Co. v· 19m,'lTUJ, Silver Mining Co., 7' Fed. Rep. 401. It was held in E-mcry v. Fuwler, 39 Me. 326, in a carefully-considered opinion by the supreme court, that. a party is not permitted to bring an action against a principal for an alleged trespass, and, after failing upon the merits, to subsequently bring one against the servant who acted by the order of the principal, and rely upon the same acts as a trespass. The court said: "In such cases the technical rule that a judgment can only be admitted between the parties to the record. or to their privies. expands so as to admit it when the same questipn bas been decided and judgment rendered between parties responsible for the.acts of otheril."
See, also, Kinnersley v. Orpe, Doug. 517; Warfield v. Davi8, 14 B.Mon. 40; Castle v.· Noyes, 14 N. Y.· 329; Kitchen v. Oampbe11, 3 Wils. 804; Phillips v. Ward. 33 La w J. Exch. 7. It is unnecessary to the present decision to hold that the former judgment would not estop the owners of the schooner if Sundberg had not participated in defending the suit; but, as the facts are, we think it.Ut a good estoppel. The decree of the court below is reversed, with instructions to dismiss the li.bel as to all the libelants except the Virginia Home Insurance Company, and as to that libelant to overrule the exceptions to the amended libel,. and to take such further proceedings 88 may be proper, in conformity with this.opinion.
THE W. B. CoLE. BAUMGARTNE1t (Ct1'Cll:l.t
'V.Tw: W. B.
CoLE.
Court, S. D. Ohw, W. D. February 23,1892.)
41\14.
A mortgage .of a vessel Is valid as against having actual notice thereof, though not recorded in the collector's office, as required by Rev.St. U. So 15 4192Under those sections, a m(lrtgage which is actually recorded is constructive n0tice, though it has not yet been indexed. .
2. BANE-FAJLURE TO INDEX.
.
8.
SAttfE-Ac'J:UAL NOTICE-PRIOR BONA FIDE PuRCHASER.
Where one purchases a vessel with eil her actual or constructive notice of a mo", gage, it will not be presumed in his favor that his vendor, who purchased before the mortgage· was recorded, was a bona fide purchaser without notice, &Dd the burden is on him to show that fact. OP MORTGAQE"':'PRJOR EQUrtUIS: . .
...
'O,ne who 'tIlkesa'nlortgage of :aves861 by assignment' after the:recordlng of · mor.tgageofE1ar}ler date cannot prCltect hiJnself ,from the of exc,ep$ by clearly showlbgthat some one of tb.e owners of the vessel through whom he &0quired his lien was a bema Me pu,rchaller without :notice. . .
In .'dmiralty. ,On appeal from di!ltrict court. Libel p.rtner against the steam-boat B. Cole. Decree below dinned.
588
FEDERAl;..
vol. 49.
Miner for appellul).t.· .,jJ;qnn' 1j1.! O'Connell and Philip Roettinger, for appellee. ,
Circuit Judg3. question presented by the appeal in is simply, ope of priority behveen two claimants to a SW'plllS in the registry of the court arising from the saJe of the steamboat W. B, Cole,wbich. has been seized and sold to satisfy and discharge certain '11uritime liens which are not in controversy. The surplus f9nd:arising from the sale of said steam-boat is claimed by the intervening libelant and appellapt, F. J . O'Connell, under a mortgage executed by one William H. Wl'ight, as owner of the 'boat, to B. B. Bradley, to secure the payment <of $1,300 evidenced by said Wright note to 'said ;Bradley, bearing date;March 7 or 8, 1890, and due 30 days aftet' date', w.hich Bradley, before maturity, transferred and assigned with the mortgage to said O'Connell·. :'Fhe other claimant to the fund, ora:;portion' isth'e·appellee,'C. M.Pate, who held a mortgage upon' an undivided half interest in the said W. B. Cole, to secure the pay,mentofnotes for abou'i$1,000( The district court adjudged Pate's lien upan one.half thesnrplus to be superior to that of O'Connell, and the present appeal is prosecuted to 'reverse that decree. The :material facts ofthe case are these: C. M. Pate and B. B. Bradley were, in 1889, the joint and equal owners of the steam-boat W. B. Cole. In May, 1889, Pate sold his one-half interest in the 'boat to JohnErhman. Jr., for part cash, and for the balance of $1,000, taking the notes of said Erhman, with mortgage on the one-half interest in the boat to secure the payment of the same. This mortgage was left for record at the collector's office on the day of its execution. The collector failed to indorse upon it the date when received, and neglected to record it until March 6, 1890, when it was duly recorded, but was not indexed until some time after Marc1l28,,1890., B. kllBw of Pate's sale to Erhman, and of the latter's mortgage upon a half interest in the boat payments to secure the payment ()fthe notes given Pate for the of purchase money. Bradley was also present when Pate left or filed said mortgage with the collector for reoord. EaTly in January, 1890, , said .sQt<l and transferred his undivided half interest in the steam-boat to said Bradley, who thereby became the sole owner of the W. B. Cole. On the 17th January,. 1890, Bradley sold the boat to the Moscow & Cincinnati Tow-Boat Company.. On the 7th of March, 1890, said Moscow & Cincinnati Tow-Boat Company sold the boat to William on the same day mortgaged. it to said B. B. Bradley, to secure the payment ,of a 30-day note for $1,300, which note Bradley, before maturity, indorsed ,apdtranSferred to ,l1ppellant O'Connell. under which O'Connell claims priorThe Wrigbt mortgage to it,y, was executed and filed llnd noted"for recordadll.Y or two days after the Erhillari mortgage to Pa'te was actually. recorded. The contention of the appellant is that, under sections 4192-4194 of the R!:lvised Statutes of the United StMes, the .Pate .mortgage could Dot ll.»ddid not become is. lien upon the balfinterest in the boat until ,·JM.B;SON,
THE
w.
B.COLE:'
589
it' was actually recorded and indexed·. Section 4192, Rev. St., provides that "no bill of sale, mortgage, hypothecation, or conveyance of any vessel of the United States shall be valid, against any persons other than the grantor or mortgagor, his heirs or devisees, and persons having actual notice thereof, unless such bill of sale, mortgage, hypothecation, or conveyance is recorded in the office of the collector;" etc. Section 4193" Rev. St., directs the collector to record all such bills of sale, mortgages, etc., in the order of their reception, noting in the record book, and also upon the instruments, the times when received or filed. Section 4194, Rev. St., requires the collector to make and keep an indexof such records, etc. We have not been cited to, nor have we been able tt> find, any direct ruling by the supreme court upon the question whether, under these proVisions of law for the recording of mortgages upon vessels of the United 'States, such mortgages are considered or deemed recorded when or at the time of being filed with the proper officers. Decisions of the state courts under their recol'ding acts, which vary greatly in their provisions, are so 'conflicting on the question as to afford no safe guide in determining whether the filing for record' is equivalent to actual recording. There 'is no rule or theory' by which the decisions can be harmonized, as they rest so largely upon the particular language of the respective recording acts on which they are based. Much may be said on both sides of this question, under tbe foregoing provisions of tbe United States Revised Statutes. But we do not deem it necessary, in .the present case, to go into that question, although the court below rested its judgment upon the ground that the Pate mortgage became a lien from May 8, 1889, the day it was filed with the collector. It is settled by the decision in Moorev. SimondA, 100U. S. 145-147, that Pate's mortgage was not rendered invalid, as against partiesha"ing notice thereof, by the failure of the collector to record it. In that case it is said by the court "that congress only intended to require that a mortgage ona vessel' should be acknowledged for the pqrpose of authenticating it for record,and that as between the parties; and as against persons having actual notice thereof, it was valid without acknowledgment or record," Now; it was found by the special master to whom the daims were referred for investigation and report thereon, and there is nothing to contradict his findings, that Pate's mortgage was duly exe<luted, acknowledged, and filed for record May 8, 1889, and that Bradley, the joint owner of the boat, knew of the mortgage, and was present when it was filed with the collector. It is perfectly clear, therefore, that when said Bradley, in January, 1890, purchased said Erhman's half in-" terest in the boat, he took that interest subject to the prior lien of the mortgage to Pate. It does not appear from the report of the special master whether the Moscow & Cincinnati Tow-Boat Company, to whom the boat was sold by said Bradley on January 17, 1890, was a bonafide pur<lhaser thereOffor value, and without notice or knowledge of said mortgage; Nor does it appear from said report or otherWise, in tM record :submitted tothiscourt,tbat WilliamH. Wright, to whom the Moscow
p9o.
DDERAL R,EPQRTEB".vol.
49.
,TQl\'-Boat .'9J9-tbe boat on MaJ;'9q7,1$,.90,was notice oCsaid Pllte mortgll,ge, aQch ,a:purcbaser for valqe aIld, It is,' by,tqe special mas,. tel', the fttte on 1890, and, whether ,then indexed groqt, that recqrdqwas constructive notice to said on the 7,th March, 1890" of Pate's prior Hen uuder the Erhman mortgage of May 8, is said that this constructive notIce: ,should the title in Wright's hands, be-cause he purchased framtlie MoscQw & Cincinnati TO'Y-Boat Company. who was an innocent purchaser for ralue, without notice, previous to 6, 1890. As stated,tbeJ;'e is nothing findings of report to support thl:) ,position that the Moscow )3oat Company was an innocent pu:rchllser for value without notice of .t):leIDortgage to Pate. It is not ,to be assumed in favor of Wright, who p,urchased with constru,ctiv,e, if not actual, notice of Pate's mortgage, his vendor was a purchaser for \;'alue and without notice. Wben or those u,I1der, him, invoke the benefitoNhe prillci pIe that Ilurcbaserwith pohce,actual (,>r coOstructive,is protecteli by bis vendor's of notice, it Ulust be, and clearly shownt4at such vendor 'fA,S aJ;l innocent purcbl\ser for value without notice. Thl\t fact will not be presumed, but affirmatively. It has not been in thiscase,and it consequently follows that the title which Wright acquired bis purcbaee on March 7, 1890, w,assubject to the, Pate . . But aside from tbi!l.v.'lew10f the subject, which would, prevent Wrigbt from av()iding the of theconetructive notice of Pate's mortgage created by its registration on March 6, 1890, r.ender the title acquired by thereto, .how stands the case when Bradley took or reacquired the title from Wrigllton the, 8th March, .Bradley, in takipg title to the, hoat by, way of mortgage to se-cure payment ()f by Wright, had botb actual and constructivenotice(,>f Pate's mortgage., He,aner buying Erhman's IMUf interest 1890, owned the enHre vessel, and held eubject to the lien of the mortgage to Pate. Wben the title was re-in hiI1;1 under the mortgage frqm Wright, why should not Pate's and lien reattach .,tQ againet him? Bradley could notpP5silJly hav:e defeated or acquired priority over Pate's mortl?age, of w.bich he had both actual-8ndcopstructive notice whpn he to{)k the IBortgageJrom Wright or the MQscoW Company an innocelltpurchaser for :vaIu,e, without notice,: as "purged ,away the equity or lien of the Pate IUortgage}rom the Whl'lt BradleiY would bayebeen required to est11-blish"inorder to mprtgage ()lltraplc that of Pata, his asg, ,O,'oonne11, ,S,h,oUld: 1>"er,e, tOS,.h!>w; 1,0,rO'Copn,ell 118,v,ln g w.,ken ,the 8{lSignment al;1d of the PQtea,nd mOI'tgage after tl;1e record of ,therefore witp!Jop$tructivenoticeofitsexiSttcnce, cap only! be to prptect bimsl;llf against its priority by esequijiy ofsomB prior '1E!ndor, under.whom he, Qr
591 thos.a'to wh6serighhi,he'hllB sucaeeded,held tlievessel. Pate's lien is pmOl' in' date to the .Bradley' mortgage, .under which ·O'Connell claims.' It was also first recorded, and the priority of lien thereby:conferred'and acquired is only tabe, defeated by.anaffirmartivElsliow.ingon the part of the appellant that some one or more of the owners or purchasers ofthe vessel through or under whom he acquired his title or lien were such banafide purchasers for value, without notice, as to:out off arid defeat Pate's lien., Neither the',intervening petition' of appellant nor the find.;. ingsof the special master's report make out such a showing.' Tbereis no error inthejudgment of the lower court, and the same is affirmed, with costs ofthis court to be taxoo against appellant and sure:title on bond fofappeal.The appellee, Pate,will be allowed interest ,on the awarded him:; and the caus6will bereniandedto the district with 'the ,distribution of the funds in the,registl1 of that court arising from tbe ,sale Of the W. B. Cole, in conformity with ita de.; cree in the'premises, ,and'with ali allowance to Pate of in'tereston'th. be. decreed to be paid to him sUice date of said deeree. '
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1.
BU.MD-CIDISRATING" BY MASTBB-EVIDBlfCB.
The "disrating" of certain seamen by the master was sustained by his testimony and the mate's, but was contradicted by the testimony of each seaman disrated, as regards himself, but not as regards the other seamen. The appearance of the seamen did not impress the court favorably. Held, disrating would be accepted by the court In computing the wages due. A charge for "breakage" against a vessel'··tewaM ill unuaual, and will not be allowed.
.. CHARGBS AGAINST STBWARD-BRII:'UUGB.
In Admiralty. Libel by Henry Spicer, Peter Peterson, Paul Hanson, George Peterson, and George Henry against the bark Yamoiden, to recover Decree for libelants. Alfred Driver, for libelants. John A. Toomey, for respondents. BUTLER, District Judge. It is difficult to reach a satisractory conclusion from the evidence presented. If the libelants' offer to submit the controversy for settlement to the shippmg commissioner had been accepted, the chances of reaching a just result would have been increllBed. With
lReported by Mark Wilka Collet, Esq., ot the Philadelphia bar.