Hamilton have hereunto set their hands and affixed their seals, this fourth day of May, 1800. ROBT. &. JAS. HAMILTON, (seal.) Signed, sealed and delivered, } presence CH. SIMMS, JAMES D. LOWRY." "At a court of hustings, held for the town of Alexandria, the 6th of October, 1800, this bill of sale, from Robert and James Hamilton to William Hodgson, was proved to be the act and deed of the said Robert Hamilton for self and for James Hamilton, by the oaths of Charles Simms and James D. Lowry, witnesses thereto, and ordered to be recorded. "G. DENEALE, Clerk." The plaintiff also produced in evidence the register of the schooner, with an endorsement thereon in these words, "At the request of the within named Robert and James Hamilton and William Hodgson, merchants, of the town of Alexandria, I hereby certify, that the within mentioned vessel is mortgaged by the said Robert and James Hamilton to the said William Hodgson, to secure the payment of the sum of ten thousand dollars, as witness my hand, this thirteenth day of May, one thousand eight hundred. "CHAS. PAGE, Dy. Collr." It was proved that the said register, with the endorsement thereon as aforesaid, was delivered to the defendant previous to the sailing of the said schooner. That *she sailed from Alexandria to New Orleans about the 14th of May, 1800, from New Orleans to Jamaica, and from Jamaica she arrived at Alexandria about the 27th of November, 1800; at which time, and not before, she was put into the actual possession of the plaintiff, under a new and absolute bill of sale, executed by Robert and James Hamilton to the plaintiff, at that time. That the defendant received the freight of the cargo, carried from New Orleans, at Jamaica. No evidence was adduced to show that the plaintiff had ever given notice to the defendant that he should look to him for the freight (other than the endorsement on the register.) On the part of the defendant, evidence was adduced, to prove that R. & J. Hamilton, on the 12th May, Hodgson V. Butts. *142 Hodgson V. Butts. * 143 1800, were indebted to a certain John Haynes, in the sum of 384 dollars, for wages as a seaman, previously earned; 184 dollars of which were earned on board the said schooner, and 200 on board another of their vessels. That being so indebted, R. Hamilton, on the 13th of May, 1800, gave the said Haynes an order on his brother James, then in New Orleans, stating a balance of 384 dollars to be due to him, with some interest, and requesting his brother to pay it. That on the same day, they were indebted to the defendant, in the sum of 800 dollars, for wages due him, as master of, and disbursements on account of, the schooner, on a previous voyage, which sum R. Hamilton requested his brother James, at New Orleans, to pay, by letter of that date. That the defendant received his sailing orders and instructions from R. Hamilton, in the name of R. & J. Hamilton, on the 14th of May, 1800, before he sailed from Alexandria. That the vessel was conducted entirely under the directions of R. & J. Hamilton, from the date of the mortgage, on the 4th of May, 1800, until the 27th of November, 1800, when she was delivered to the plaintiff. That on the voyage from Alexandria to New Orleans, the defendant met James Hamilton, in the river Mississippi, and showed him the orders in favour of the defendant and of John Haynes, and requested payment. That James Hamilton replied, that he had no money to satisfy the said orders; that the defendant *must wait until the vessel earned enough to pay them, and desired the defendant to pay them out of the first money the vessel should earn, by freight or otherwise. That the vessel proceeded to New Orleans, and from thence with a cargo to Jamaica, where the freight was received, and out of the same the defendant paid Haynes the 384 dollars, and applied 800 dollars to the discharge of his own claim. That the vessel then sailed from Jamaica, and arrived at Alexandria on the 27th of November, 1800. That after her arrival, and after possession delivered to the plaintiff, the latter paid the expenses and disbursements of the voyage, which became due on her arrival, by the orders of the defendant. The plaintiff also insured the vessel for the said voyage, and paid the premium thereon, after her departure for New Orleans. It was also proved, that on the defendant's return to Alexandria with the vessel, and before the plaintiff took possession of her, and received his absolute bill of sale as aforesaid, the defendant rendered to, and settled with, R. and J. Hamilton, an account current of the expenses and profits on the said voyage, in which they gave credit for the order in favour of himself, and that in favour of Haynes. Upon this statement of the evidence, the plaintiff prayed the court to instruct the jury, that he was entitled to recover of the defendant the sum of 1,184 dollars, thus admitted to have been received for freight, and applied to the discharge of the two orders; which the court refused to do, and directed the jury to find a verdict for the defendant, if they found the facts to be as stated. The 2d bill of exceptions stated that the plaintiff prayed the court to instruct the jury, that if they should be of opinion, from the evidence aforesaid, that the defendant received information of the mortgage from Robert Hamilton, before the schooner sailed upon the said voyage, the plaintiff was entitled to recover the said 1,184 dollars, which the court also refused to do, and directed the jury, as before, that their verdict ought to be for the defendant. This case was first argued at February term, 1804. *February 27, 1804. E. J. Lee, for the plaintiff in error. The law of mortgages is the same both as to land and personal property. The case is to be considered, first, upon common law principles; and, second, upon the statute law of Virginia. First point. That the mortgagee is the legal proprietor of the mortgaged subject; and as such, he is entitled to receive the rents and profits after notice of the mortgage, unless the contrary be stipulated. The mortgagee of lands leased becomes entitled to the rent from the time of executing the conveyance; for the rents and profits, as well as the land, are liable for the debt. As soon as the conveyance is executed, the estate is, 1 Hodgson V. Butts. *144 Hodgson V. Butts. * 145 in law, vested in the mortgagee, and his power to take actual possession exists from that moment. For these principles, see Powell on Mortgages, 79, 80, 81. The mortgagee is the absolute proprietor and the true owner. 1 Vez. 361. Ryall v. Rowles. If lands be mortgaged to one, the interest in them is in the mortgagee before forfeiture; for he has purchased the lands upon a valuable consideration, as the law will intend; and though the mortgagor may redeem by means of an agreement between the parties, if he does not, the estate, in law, is absolute, without any other act to be done, to pass the estate; although the mortgagor has in him the equity of redemption. 15 Vin. Abr. 44. A mortgage is defined to be the appropriation of a specific thing to certain purposes. It does not, in the case of a mortgage, require the delivery of the article, in order to transfer the right and title to it. *A mortgagee of real property may bring an ejectment to get possession against any person in possession; and may also bring an action for the mesne profits; so he may bring trover for personal property, and in the estimation of his damages, a charge for the intermediate produce or profits of the article converted would not be rejected, but would be taken into the account. So he may bring detinue, without any proof of possession in the mortgagee. 2d. Possession, upon common law principles, is not necessary in order to give title in the transference of property. It is true, that possession in the vendor after the transfer, is prima facie evidence of fraud, and this is the only effect of such possession; but as to the proof of fraud, it is not conclusive. It may be rebutted by testimony showing the transaction bona fide. The only use in delivering possession, is to prevent strangers being deceived by a false credit, which the possession in the vendor is calculated to produce. This reason cannot be applicable in this case to Butts; 1. Because Butts knew of the mortgage; 2. Because the debt due to him from the Hamiltons was an antecedent debt. If the Hamiltons had been declared bankrupts, their assignees could not have claimed the vessel or the freight; because both were pledged as a security to Hodgson. See the bankrupt law of the United States. Upon common law principles, the mortgagee must be considered as the legal proprietor of the vessel. 3d. But the act of the legislature of Virginia places the question beyond a doubt, and proves that possession is not necessary to constitute the ownership. See Virginia Laws, 157. Revised Code of 1802. 1 Wash. 177. The legal owner of the vessel is entitled to receive the freight. Marshall on Insurance, 93. *The mortgagee of a vessel in a late case has been considered as the owner, and as such, liable for repairs done to her before he received actual possession. 7 Term Rep. 306. In this case the decision in Chinnery v. Blackburne, 1 H. Bl. Rep. 117. is not considered as correct. The two cases of Jackson v. Vernon, 1 H. Bl. 114. and Chinnery v. Blackburne, which will be relied on by the defendant, will, upon examination, be found not to meet the question which arises in this case. In the case of Jackson v. Vernon, the question was, whether the mortgagee was liable for the repairs to the ship; it was decided he was not, because, the mortgagor himself ordered the repairs; as the person who makes repairs on a ship, has a claim on the person ordering them, it was supposed the credit was given to him, and upon this ground it was held the mortgagee was not liable. In the case of Chinnery v. Blackburne, Merryfield acted as the owner; he navigated the vessel, and made all contracts about her, from London to Antigua. He was on board of her on the voyage, and at Antigua gave the command of the vessel to another captain; he also insured the vessel; and at Antigua acted personally in command of the ship. This is not like the case at bar; for in this, Hamilton did not furnish the vessel, or man her after the mortgage, nor did he insure her; but Hodgson did the last act. But both cases are doubted in the case 7 Term Rep. 306. and by Abbott, 16. who says, they do not furnish a case for the decision of the question, who is entitled to the freight, which a case of a contract made by the master in that character will; which is our case. There is a distinction in a court of equity and a Hodgson IV. Butts. 146 |