Balkham v. Lowe

20 Me. 369 | Me. | 1841

The opinion of the Court was by

Weston C. J.

It appears from the disclosure, that the supposed trustee and his brother built the vessel in question, that Lowe, the principal debtor, furnished the materials, for which he was to become the owner of one eighth. This was matter of contract, and whthe it so remained, did not invest him with the rights of- an owner. It was agreed, that the papers should be taken out in the name of the trustee, so that whatever interest Lowe had, was left in his hands. An adjustment afterwards took place between them ; and the trustee charged Lowe with one eighth, the papers remaining unchanged. It does not appear, that Lowe took any delivery. This may not be necessary or practicable, w'here only part of a vessel is sold, but it would seem, that if the vendee does not have or take possession, that he should receive some evidence or muniment of title. Without it, the sale may be good between the parties; and perhaps possession by the vendor, as owner of the part, he retains, might enure to the benefit of the vendee, yet his title under such circumstances is, to say the least of it, liable to be brought into controversy. Abbot on Shipping, 12. Kent, treating of the sale of part of a ship, says, “ delivery of the muniments of title will be sufficient, unless the part owner be himself in the actual possession.” 3 Kent’s Com. 132. This seems to imply that the one or the other is necessary to perfect a sale.

A direct attachment of the eighth in question, as the property of Lowe, might have created a lien in favor of the attaching creditor. Whether it would have prevathed, if the trustee had been summoned as such at the suit of another creditor of Lowe, may be questionable. And whether it might not have been exposed to be attached as the property of the trustee, may not be altogether free from doubt. In the actual posture of the case, we think the process of foreign attachment ought to be sustained. It may sometimes be proper, where a direct attachment might also have answered the purpose. Where goods are deposited for safe keeping, the bathe may be summoned and charged as a trustee ; and yet if the officer can get access to the goods, he may doubtless take them, on a common writ of attachment against the general owner.

Trustee charged.