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daughter for many years, may constitute a family.
that if the occupier of a house does not take Carmichael v. Northwestern Mut. Ben. Association, a drop of water out of the pipes, he would neverthe51 Mich. 494. The court said: “Now this wordless be liable to pay the water rates unless he gave family,' contained in the statute, is an expression notice to the water company that he did not intend of great flexibility. It is applied in many ways. It to use the water." may mean the husband and wife having no children LODGER. — In the Lodgers' Goods Protection Act and living alone together, or it may mean children, this word means one who habitually sleeps on the or wife and children, or blood relatives, or any premises. Ileawood v. Bone, 51 L. T. Rep. (N. S.) group constituting a distinct domestic or social 124, Q. B. Div., Stephen, J., said: “The question body. It is often used to denote a small select corps whether, upon the facts stated, the appellant is a attached to an army chief, and has even been ex
lodger is no doubt a fickle one to determine. I do tended to whole sects, as in the case of the Shakers.
not think that the registration cases bear on the We discover nothing in the statute implying a nar
matter at all. It seems to me that by the word row sense, and we should not be inclined to attribute lodger’ the Legislature meant a person who lives one where the result would cause injustice. It seems
on the premises. Now living at a place generally to us that the circumstances constitute a case within implies habitually sleeping there - that is, going to the meaning of the Legislature."
bed at night there. It is to be observed that the CLAUSE.— In Eschbach v. Collins, 61 Md. 478; the object of the statute was to protect poor people from court said: “What then is a clause? Does it con
having their homes broken up by a distress of the sist of two or three words, which disjoined from the superior landlord.” Mathew, J., said: “I am of context and transferred to a separate sheet of paper, the same opinion. It seems to me that the essential would be devoid of sense or meaning? Do the mere element of lodging is living or residence, and that names of two persons constitute a clause? Is not a to constitute a person a lodger of any premises, it clause understood to mean one of the subdivisions
must be shown that he resides—that is, sleeps there." of a written or printed document ? Is the word
LOTTERY.-Advertising that the defendants would ever used in any other sense ?."
give to the person buying goods at their store to the GAMING.— Betting on a horse race is gaming. amount of fifty cents, and guessing nearest the numDyer v. Benson, 69 Ga. 609. The court said: “A
ber of beans in a glass globe in their window, is adgame is any sport; originally racing was one of the vertising a lottery. Hudelson v. State, 94 Iud. 426. games of antiquity. Thence from foot racing came The court said: " The contention of appellants' chariot racing, horse racing, etc., which are all counsel is that the enterprise, as set out in the pubsports or games for diversion and 'amusement of lication, is not a lottery, nor in the nature of a lotspectators, and betting on any of these games be.
tery or gift enterprise. That to arrive at the correct comes illegal."
pomber of beans in the glass globe is not a matter PRODUCTION OF LABOR. Hay is the “production of chan but of mathematical calculation. We of labor.” Emerson v. Hedrick, 42 Ark. 263. The
cannot concur in this view. An expert mathemacourt said: “The only point made here for appellant tician might compute the dimensions of the glass is, that the complaint did not sbow that appellee globe with a reasonable degree of certainty. Necesproduced the hay, and therefore he had no lien upon sarily the result could be but approximately correct. it for his labor. The argument is, that prairie hay To be mathematically correct, the exact thickness of is a natural product, and being such, appellee pro- the glass would have to be known. This exactness duced nothing by cutting and raking it, but simply could not be attained by an observation of the sealed changed its form or assisted in putting it in a market- globe. Here would necessarily be an element of able condition. Hay is grass cut and dried for guessing. And if the exact size of the globe were fodder — grass prepared for preservation. Make known, it would be utterly impossible, by the applihay while the sun shines.— Webster. Wild prairie cation of mathematical rules, or by any other means, grass is not hay, but when cut or mowed and raked
to calculate the number of beans contained in it. The it becomes hay, the drying or curing occurring be- size of the several beans, so far as they could be tween the former and the latter process. Hay may observed, would be a matter of pure guessing. therefore with propriety be said to be the “produc- And besides, only those on the surface and next to tion" of the laborer who cuts and rakes it - in other
the glass could be seen. Those in the center might words makes it. To hold otherwise would be a
be smaller or larger. In short, there could be no very narrow construction of the statute."
fixed or definite fact or quantity upon which to RATES AND TAXES. — This phrase in a lease in- base a mathematical calculation or demonstration. cludes water rates. Direct Spanish Telegraph Co. v.
The number of beans in the globe could be nothShepherd, 51 L. T. Rep. (N. S.) 124, Q. B. Div. ing else than a matter of guessing. An expert
said: Confining myself to the judge's mathematician might fix more nearly the size of the notes, the question for the court to determine is globe than an entirely uneducated person. And so whether a water rate is a 'rate or tax.' If it is not he, and persons of better judgment, might fix more a 'tax,' what is it? I say a rate, but Mr. Upjohn nearly the number of beans in the globe than persays it is simply a payment for goods sold and de
sons of less judgment; yet the exact number would livered. I do not think that it is so, and for this
be a mere matter of guessing. That any one should
appeared to contain more than a halfpenny, and
guess the correct number would be a matter of the inspected, in order to determine how much remains to be merest chance, because there are no means of attain
paid, is not inconsistent with the purpose that the title ing to a certainty. Whether the enterprise set out
should pass upon the partial payment,
Title may pass without delivery, if the property sold is suffin the publication be called a scheme of chance, a
ciently identified, and even if something remains to be gift enterprise or a lottery, it is still a scheme of done to fit it for delivery. chance, and in that sense a lottery or gift enterprise. The watch was to be given to the person
tu Oceana. Opinion states case.
ERROR who should come nearest guessing the correct num- Fletcher & Wanty, for plaintiff and appellant. ber of the beans. Who that might be would
Peter Doran, for defendant. be purely a matter of chance. Whether that per
COOLEY, C. J. Replevin for a quantity of lumber. son might guess the correct number would be a
The plaintiff claimed title to the lumber under a conmatter of chance. Chance was to settle the owner- tract made between S. B. Farnsworth, Charles Farns. ship of the watch. And thus the enterprise was to worth, Addie P. Farnsworth, William Farnsworth be a lottery.” The London Law Journal of Sept.
and Fanny Whittington, of the first part, and A. W. 27, 1884, says: “A seller of 'lucky balls' at Man
Byrne, of the second part, Jated October 28, 1890, chester seems to have had a lucky escape.
whereby the parties of the first part agreed to cut, haul, The
and saw in their mill at Mears, the timber on certain children who bought them were told that by the lands owned by them in Oceana county, and sell the investment of twopence they had a chance of find- lumber to the party of the second part at certain rates ing a half-crown, shilling, and so on down to a far- specitied for eight separate classes, ranging from 84 per thing, inside. On being opened, none of the balls
thousand feet for culls, to $22 and $23 per thousand feet for the three grades of uppers. The terms of payment
were to be one-half as soon as the lumber was piled in this ground, apparently, the magistrate decided that the yard, and the balance in ninety days after shipthere was no lottery. The balls with money inside ment. The following, among others not necessary to are exactly analogous to the packets of tea with be recited, were special clauses of the contract: “And trinkets inside, decided in Taylor v. Smetten,
it is further agreed that all lumber at all time shall be L. J. Rep. M. C. 101, to amount to a lottery. The
cut to the order of the party of the second part, in
whatsoever shape he may direct. And it is further absence of proof that there were prizes in the balls
agreed that the parties of the first part shall not sell or could not weigh against the statement that there dispose of to any parties any of the above-mentioned
A lottery is none the less a lottery because grades of lumber, excepting orders that are on the it is also a fraud. The stipendiary compromised books of the firm on the day of the date of these presmatters by making the defendant pay the cost of
ents. The parties of the first part reserve the right to
remove and dispose of not to exceed two hundred the summons, which was Cadi justice. However
trees suitable for spars. It is agreed that the parties of the juvenile mind of Manchester will probably not the second part shall not require the parties of the first in future be taught gambling by a system so irresis- part to cut lumber or timbers longer than twenty feet. tible that the blanks are sweetmeats.”
The inspection that shall govern shall be what is COMMIT, MAKE.—“Commit an assault” is equiva- furnish an inspector, and in case they disagree then an
kuown as the Michigan inspection. Each party may lent to "make an assault.” State v. Murphy, 35 La.
uninterested party shall be called upon any question Ann. 622. The court said : “In common par- that may arise.” lance, the words 'commit an assault' convey as November 5, 1880, the party of the second part asclear a meaning as ‘make an assault.' In ordinary signed his interest in the contract to the plaintiff, and acceptation, and in the connection shown, the
in the following July the parties of the first part enwords would be held as synonymous, and not with
tered into a contract with George Murphy, whereby
he acquired an interest in the first-mentioned contract, out authority, since one of the definitions of the
the particulars of which it is not necessary to give now. word 'commit,' and its most usual meaning is, to The lumber was cut by Murphy after July, 1881, and ' perpetrate or enact. Worcester, verbo commit.' ? piled in the mill-yard, where it was attached by the MANUFACTURE. — A saw mill is not a "manufac
defendant, who is sheriff of the county of Oceana, by tory of articles of wood.” Jones v. Raines, 35 La.
virtue of attachments against Murphy and William
Farnsworth, and as their property. The attachment Anp. 996.
was made February 2, 1882.
The Circuit judge who tried the case finds “that said SALE - VESTING OF TITLE,
lumber had never been measured, but plaintiff, under
said contracts, had advanced one-half of the estimated MICHIGAN SUPREME COURT, JUNE 4, 1884.*
value, as provided for iu said contracts, from time to
time, on an estimate made by counting piles on yard BYLES V. COLIER.*
each month; that it was the practice of the parties to
said contract to measure and inspect the lumber as it The presumption that title does not pass upon a sale so long
was loaded upon the cars for shipment, and this measas any thing remains to be done to determine the sum to
urement and inspection was recognized and acquiesced be paid, is not conclusive, but may be overcome by such
in by all parties, and the lumber was paid for in acfacts and circumstances as indicate a contrary intent in
cordance therewith, the plaintiff rendering to second the parties, and the intent is a question of fact and not of
parties in said contract statements of number of cars, law.
quantity and quality of lumber on each, and prices proWhere money has been paid upon a sale of personalty that
vided for, and making payment of the amount to be has been set apart for the purchaser by examination and
paid ninety days from time of shipment, as stated in estimate of its quantity, the fact that it must be further
said contract; this inspection being made by a person *S. C., 19 N. W.Rep. 565.
satisfactory to both parties. This particular lumber
was not so inspected, measured and shipped until 68 111. 333; Straus v. Minzesheimer, 78 Ill. 492; Crofoot some months after it was replevied by plaintiff in this v. Bennett, 2 N. Y. 258; Groat v. Gile, 51 id. 431; suit. The last of the lumber was manufactured in
Burrows v. Whitaker, 71 id. 292; Dennis v. Alexander, 3 June, 1882, and had not all been shipped in February, Penn. St. 50; Galloway v. Week, 54 Wis. 608; 1883, when the case was tried. The plaintiff settled Caywood
(Kans.), 2 Pac. Rep. with Murphy for the lumber in May or June, 1882, but 566. then the amount was estimated, and a sum agreed That the cases referred to settle the general princiupon as the sum that should be payable, the entire ple, at least for this State, is beyond question or cavil. quantity of the lumber not having been at the time in
Presumptively the title does not pass, even though the spected and measured. This settlement was after the articles be designated, so long as any thing remains to replerin suit bad been brought. The plaintiff did not be done to determine the sum to be paid ; but this is claim title to the lumber in question by virtue of any only a presumption, and is liable to be overcome by settlement or contract with the Farnsworths and Mur
such facts and circumstances as indicate an intent in phy, but claimed that he became the owner of the the parties to the contrary. In this case the Circuit lumber manufactured under said contract by the pay: judge has not passed upon the question of intent as ment of one-half of the purchase price, as estimated one of fact, but he has found, as a matter of law, that and mentioned in said contract, and by virtue of said under the contract the title had not passed when the payment the title passed to him."
attachment was made. In thus treating the question The judge concludes his findings as follows: “I find as one of law instead of fact, we think he erred. The as questions of law from the evidence and the con- facts found by him might possibly have justified the tracts-it being expressly provided in said contract conclusion as one of fact, that the miuds of the parties that each party had the right to furnish an inspector had not met in an intent that the title should pass ; to inspect and grade the lumber, and in case of disa- but the opposite conclusion seems much the more reagreement of inspectors a disinterested party should be sonable, and it is hardly probable that the Circuit judge called upon to settle any question of difference, and would have failed to draw it if he had felt at liberty, this lumber in question never having been measured under the terms of the contract, to do so. But the jusand inspected according to provisions of the contract tification would have been ample under the authoriand usages of the parties under it-that at time of levy ties. The lumber which was attached had been examunder the said writs of attachment the title of the lum.
ined by the parties as lumber which the plaintiff was ber in question had not vested in the plaintiff herein; to receive. They had agreed in an estimate of the that no title to the standing trees passed under said quantity, and the plaintiff had made the payment contract to plaintiff, the contract being for manufac- upon that estimate which, by the contract, he was to turing rather than sale of standing timber; that by make upon inspection. The lumber was therefore set advancement of one half of purchase price of lumber apart for the plaintiff by examination, estimate and on estimated quantity and quality on yard under said payment; and it is not likely that either party supcontract did not of itself pass absolute title to the
posed, after the payment had been made, that the lumber in question to the plaintiff, aud the title to the ownership was in any one but the plaintiff. said lumber replevied at time of replevy was in George That for the purpose of determining with accuracy Murphy and William Farnsworth, and hence subject to the sum to be finally paid, an inspection was to be bad, Jevy under said writs of attachment."
is true. But this fact is not inconsistent with an inThe defendant had judgment accordingly.
tent that the title should pass immediately, when parIn Lingham v. Eggleston, 27 Mich. 3:24, it was decided
tial payment was made ou the estimate. Colwell v. that the question whether a sale is completed or only Keystone Iron Co., 36 Mich. 51; Macomber v. Parker, executory is usually one to be determined from the in- 13 Pick. 175; Williams v. Adams, 3 Sneed, 359; Sewell tent of the parties as gathered from their contract, the V. Eaton, 6 Wis. 490; Morrow v. Reed, 30 id. 81; Ocksituation of the thing sold, and the circumstances ington v. Richey, 41 N. H. 275; Fitch v. Burk, 38 Vt. surrounding the sale; that where the goods sold are 683; Hatch v. Oil Co., 100 U. S. 124; Oil Co. v. Van designated, so that no question can arise as to the Elten,
107 id. 325.
title might pass thing intended, it is not absolutely essential that there
without delivery if the property should be a delivery, or that the goods should be in sufficiently identified (Kimberly v. Patchin, 19 N. Y. deliverable condition, or that the quantity of quality,
338; Russell v. Carrington, 42 id. 119; Watts v. Hendry, when the price depends upon either or both, should be
13 Fla. 523); and even though something remained to determined; these being circumstances indicating intent, but not conclusive; but that where any thing is
be done to fit it for delivery. Elgee Cotton Cases, 22 to be done by the vendor, or by the mutual concur
Wall. 180; Butterworth v. McKinly, 11 Humph. 206; rence of both parties, for the purpose of ascertaining Cummins v. Griggs, 2 Duv. 87; Burr v. Williams, 23 the price of the goods, as by weighing, testing, or Ark. 244. But the delivery made in this case was all measuring them, where the price is to depend upon that the contract contemplated, and was therefore the quantity or quality of the goods, the performance sufficient. Morrow v. Campbell, 30 Wis. 90; Rattary v. of these things, in the absence of any thing indicating
Cook, 50 Ala. 352; Hurd v. Cook, 75 N. Y. 454; Bell v. a coutrary intent, is to be deemed presumptively a condition precedent to the transfer of the property,
Farrar, 41 III. 400; Graj v. Fitch, 58 id. 373; Gilman although the individual goods be ascertained, and they
v. Hill, 36 N. H. 311, Cases closely resembling the one appear to be in a state in wbich they may be and ought
before us in the more important facts may be seen in to be accepted. This case has been referred to with Fitch v. Burk, 38 Vt. 683; Bush v. Barfield, 1 Cold. 92; approval in the subsequent cases of Hatch v. Fowler, Boswell v. Green, 25 N. J. Law, 390; Burrows v. Whit2 Mich. 205; Huhn v. Fredericks, 30 id. 223; Wilkinson aker, 71 N. Y. 291 ; Sedgwick v. Cottingham, 54 Iowa, 5. Holiday, 33 id. 386; Grant v. Merchants', etc., Bank, 512. Others are cited in the note to Benjamin on 35 id. 515; Scotten v. Sutter, 37 id. 526; Carpenter v.
Sales, above referred to. The case differs from SteGraham, 42 id. 191; Brewer v. Salt Association, 47 Mich. 526. The cases elsewhere to the same effect are numer
phen3 v. Santee, 49 N. Y. 35, in which there was no ous, and many of them are collected in Mr. Bennett's acceptance. note to section 319 of the third edition of Benjamin on A new trial will be ordered. Sales. And see Kelsea v. Haines, 41 N. H. 246; $. W. The other justices concurred. Freight Co. v. Stanard, 44 Mo. 71; Shelton v. Franklin,
CHATTEL MORTGAGE – RESERVING RIGHT TO cited, it is not applicable to the present case, for the SELL.
reason that the mortgagees, through their agent, bad
taken possession of the property before the writ of atCIRCUIT COURT, N. D. IOWA, E. D., APRIL 29, 1884. tachment in favor of plaintiffs was served by garnish
ment of the mortgagees and their agent. As already WELLS V. LANGBEIN.*
stated, the answer of the garnishee shows that he re
ceived possession of the property uuder the mortgage A chattel mortgage reserving to the mortgagor ihe right to
as agent of the mortgagees The facts do not present dispose of the goods in the usual course of trade, provided
a case wherein all rights under the mortgages were the stock be kept up, is void with respect to the creditors
abandoned, and the parties entered into a new and of the mortgagor.
wholly independent arrangement, whereby the goods Possession taken by the mortgagee under a chattel mortgage
were placed in the hands of the garnisbee as a pledge originally void as in fraud of creditors, before its validity
for the payment of the debts due the parties is attacked by them, is affected with the original fraud,
named as mortgagees. The possession of the goods was and gives the mortgagee no rights against the mortgagor's
delivered to tho mortgagees for the purpose of fulfillcreditors, who can at once attach the property.
ing the conditions of the mortgages, and the possesT law.
sion was held under the terms thereof, and not by fir
tue of any new contract. The point to be decided Henderson, Hurd & Daniels, for plaintiffs.
therefore is whether the taking possession of the mort
gaged property by the mortgagee in pursuance of the C. P. Brown and Robinson, Powers & Lacy, for gar- terms of the mortgage, before any creditor attacks tbe nishees.
validity of the couveyance, will validate a mortgage SHIRAS, J. The defendants, C. H. Langbein & Bro., which contains provisions showing that it is a fraud were engaged in the mercantile business at Ossian,
upon the rights of creditors. Counsel for the mortIowa, and on the 28th day of September, 1883, they exe
gagees cite in favor of the affirmative of the proposicuted a chattel mortgage on their entire stock of mer
tion the case of Congreve v. Evetts, 10 Exch. 298; Read chandise, together with their store fixtures and books v. Wilson, 22 III. 379; Brown v. Webb, 20 Obio, 383. of account, and all the additions to be made to the
In Congreve v. Evetts the question was as to the effect stock, to secure payment of a promissory note of
of a bill of sale of future crops. It was held that the $916.70, due one Louisa Wight, payable September 28,
execution of the bill of sale did not create any lien, 1884. And on the same day they executed a secoud legal or equitable, upon the future crops, but tbat if mortgage on the same property to one Ferdinand after the crops were growing, actual possession thereof Langbein, to secure a promissory note of $575, paya
was delivered to the creditor, he could hold the same ble January 2, 1885. On the 9th of October, 1883, they against an execution creditor. The point decided was executed a third mortgage on the same property to
that an executory contract, which may be ineffectual Davis & Madary to secure a note of $248.19, payable
at its date to create a lien upon property not then in October 9, 1884. Each of these mortgages contains the
existence, may be rendered binding and complete by provision that the “grantors have the right to dispose delivery of possession after the property has been of the goods in the usual course of trade, provided
created or acquired.
In Read v. Wilson the decision is based upon the they keep up the stock.” Between the 26th of July and 28th of September,
construction of a statute then in force in Illinois, by 1883, the plaintiffs sold on credit to C. H. Langbein &
which it was provided that by the insertion of certain Bro. goods to the amount of $518.34, and on the 15th
clauses in the mortgage the mortgagor might be anof October, 1883, this suit was brought to recuver there
thorized to remain in possession for two years. The for, a writ of attachment being issued, which was
court held that the provisions of the mortgage did not served by garnishing M. J. Carter, Louisa Wight, F.
comply with the requirements of the statute, and did Langbein, Davis & Co., and others, service being made
not therefore authorize the mortgagor to remain iu October 16, 1883. By agreement the answer given by possession, but that as the mortgagee took possession M. J. Carter stands as the answer of all the garnishees,
of the property before any other creditor obtained a and from it it appears that on the 10th of October,
lien thereon, such possession would cure the fraud, if 1883, M. J. Carter, as attorney and agent for the sev
any, imputed by reason of the fact that the mortgagor eral mortgagees named, took possession of the mort
had continued in possession for a time contrary to the gaged property, and has since converted the same into
terms of the statute. cash, and holds the money thus realized in his posses
Iu Brown v. Webb it appeared that one Garnier, besion, claiming that it should be applied in payment of
ing insolvent, made a transfer of property to one Boar, the mortgages above described.
which transfer was in fraud of his creditors. Brown The plaintiffs claim that the mortgages are void as
& Co., creditors of Garnier, with knowledge of the against creditors, and the question for determination
fraud in the transfer from Garnier to Bour, procured,
with Garnier's consent, a chattel mortgage from Bour is as to the validity of the mortgages as against the attaching creditors. As the mortgages iu express terms
upon the property transferred to him, to secure the
debt due them from Garnier. The court held that the provide that the mortgagors should remain in possession, with the right to sell the mortgaged property in
transfer from Garnier to Bour, though void as against the usual course of trade, they come within the rule
creditors, was good as between them, and conveyed laid down in Robinson v. Elliott, 22 Wall. 513, and
the legal title to Bour, and that Webb & ('o. were jusCrooks v. Stuart, 2 McCrary, 13; 7 Fed. Rep. 801,
tified in getting security for the debt due them from wherein it is declared that the reservation of such rights Garnier, by taking the
mortgage from Bour, as thereby to the mortgagor, upon the face of a mortgage, shows
they got security on Garnier's property, the title of
which was in Bour. conclusively that it is intended as a shield and protection to the mortgagor, and operates as a fraud upon
Of these cases therefore the only one that has any the rights of the creditors of the mortgagor, and is
bearing upon the question at issue is that of Read F. therefore void.
Wilson, and in that case the court was ruling solely Ou behalf of the mortgagees it is claimed, that grant
upon the fact that the mortgagee had not promptly ing the correctness of the rule recognized in the cases
taken possession under a mortgage which by ita
terms required him to take possession. *S. C., 20 Fed. Rep. 183.
In Robinson v. Elliott and Crooks v. Stuart, supra, it
Claims which are not concurrent, and not for the improve
ment or preservation of the ship, and not having in themselves any ground of equitable priority, are to be satisfied in the order of the dates at which they accrue. But the ordinary rule, giving priority to beneficial liens of the same class
in the inverse order of their dates, not being properly. applicable to canal boats and similar crafts inaking short trips during the open season of navigation, and laid up in the winter, held, that the rule applied to navigation on the Great Lakes should be adopted, distributing the proceeds pro rata among all claimants of the same class during the
same season. Where two maritime liens were for towage services rendered
to a canal boat upon numerous trips from New York to ports on the Connecticut river and back, during the same period, from April to November, held, that the first libellant was not entitled to priority for the payment of his whole bill, by reason of his first arrest of the vessel; but than the proceeds of the vessel, after paying the first libellant's costs, should be applied pro rata upon the claims of each, without regard to the dates at which they ac. crued, all being during the same season. N December 12, 1883, the canal boat J. W. Tucker
appears from the statement of facts in each case that possession under the mortgage had been taken before the attaching creditors had obtained any lien upon the property, yet it was not held that this fact in any way affected the conclusion announced.
The Supreme Court of California, in Chenery v. Palmer, 6 ('al. 123; the Supreme Court of New York in Delaware v. Ensign, 21 Barb. 85; and Dutcher v. Swartwood, 15 Hun, 31; the Court of Appeals of New York, in Parshall v. Eggert, 54 N. Y. 18; the Supreme Court of Wisconsin, in Blakeslee v. Rossman, 43 Wis. 116; and the Supreme Court of Minnesota in Stein v. Munch, 24 Mim. 390-all hold that where the mortgage is void for fraud as to creditors taking possession thereunder, before a liep is obtained on the property in favor of a creditor, will not render it valid. The fraud existing in the mortgage itself vitiates all steps taken uuder it.
Without citing further authorities upon the proposition, it seems to me clear that the cases last named announce the true rule. If the mortgage under which possession is taken is fraudulent and void as to creditors, then the effort to enforce it by taking possession under it camot purge it of the existing fraud, nor render valid as against creditors that which the law, on grounds of public policy, declares to be fraudulent and therefore void. When a chattel mortgage, bill of sale, or other like instrument is imperfect through insufficient description, or because theproperty is not then in existence, or because the mortgagee did not promptly take possession, or record the mortgage, or for any reason not bottomed on fraud, then taking possession may render complete and valid that which was before incomplete; but when the invalidity of the conveyance is caused by the fact that it is a fraud upon the rights of third parties, upon what principle can it be held that enforcing the fraudulent mortgage, by taking possession under it, shall have the effect of val. idating it? The title and rights of the mortgagee are based upon the mortgage. He enters into possession under and by virtue of the mortgage. If the mortgage is void as to creditors by reason of fraud, the title and possession based thereon must, if attacked by creditors, fall with the foundation on which they rest. Any other rule would in most cases enable the parties to the fraud to reap the benefits of their fraudulent practices, as in that case a debtor could give a chattel mortgage upon his property to a favored creditor or friend, remain in possession, continue to sell in the usual course of trade, use the proceeds for his own purposes, and still protect the mortgage from successful attack by being sufficiently on the alert to hand over possession to the mortgagee just before the injured creditors make a levy upon the property.
As the mortgages to Louisa Wight, F. Langbein and Davis & Madary are void as to creditors by reason of the stipulations therein contained, the property passing into the possession of the mortgagees was the property of C. H. Langbein & Bro., for the value of which the garnishees must respond to the plaintiffs, so far as the same may be needed to pay the judgment in favor of plaintiffs.
proceeding she was subsequently sold. After satisying the amount due on that libel with costs, the sum of $206.23 remained, which was deposited in the registry of the court. Prior to the sale the petitioner Stillman filed his libel against the boat on the 27th of December, 1883; and on the 22d day of January following the petitioner Deutz filed her petition against the same; both claiming maritime liens on the boat and its proceeds. The claim of Stillman amounts to $398.90 for various towage services rendered to the canal boat on the Connecticut river, between Saybrook, New Haven, Middletown and Hartford, during each month from April 9, 1883, to November 2, 1883. The claim of the petitioner Dentz is for a balance of $310 for towage services during each month from May to November 6, 1883, between Jersey City, Saybrook and New Haven, or Greenpoint. The claims for towage services rendered by each were in the usual course of the business of the canal boat upon her trips from Jersey City to the points upon the Connecticut river above named and back. The money in the registry being insufficient to pay the claim of either in full, the libellant Stillman claims the whole amount on the ground that the boat was first libelled and attached in his suit.
Benedict, Taft & Benedict, for Stillman.
BROWN, J. The claim of the libellant Stillman presents in its simplest form the question whether, as between maritime liens of the same rank, priority is to be given to that on which the libel is first filed aud the vessel first arrested, without regard to the dates at which the liens respectively accrued. Such was the rule declared in this district in the case of The Triumph (1841), 2 Blatchf. 433, note, and The Globe, id. 433 (1852), which has been more or less followed since. The principle on which this rule was based, in the language of those cases, is that a maritime lien “is, in reality, only a privilege to arrest the vessel for a debt which of itself constitutes no incumbrance on the vessel, and becomes such only by virtue of an actual attachment." Upon this view of the nature of a maritime lien, it is obvious that the parties first attaching the vessel must necessarily have a prior right. But this view of the nature of maritime liens, which is the foundation of the rule in question, has long since been superseded.
In the case of The Young Mechanic, 3 Ware, 58,
MARITIME LIENS – PRIORITY. UNITED STATES DISTRICT COURT, S. D. NEW YORK.
APRIL 24, 1884.
THE J. W. TUCKER.* Parties' before the court, having different maritime liens of
the same rank, are entitled to be paid, in case of deficiency, according to equitable priority of the liens themselves, without reference to the first arrest of the vessel.
* S. C., 20 Fed. Rep. 129.