81 Md. 603 | Md. | 1895
delivered the opinion of the Court
The proof, together with the agreed statement of facts in this case shows, that on the 18th day of June, 1891, John A. Evans, owner of the schooner “ Moore & Brady,” executed a mortgage thereon to Struven & Wacker, and on the same day the said Evans and one Benjamin F. Evans, executed a similar mortgage on the schooner “ Mary A. Kirwan.” Both of these mortgages were intended to secure the payment of a note of John A. Evans for the sum of $1,050.00, and were duly recorded in the Custom House at Crisfield, the home port of both vessels. Benjamin F. Evans owed no portion of this debt, nor was he a party to the note. On the 18th January, 1893, John S. Beacham & Bro. filed their claim for a lien on the “ Mary A. Kirwan” for work done and materials provided, to the amount of $822; and on the 24th day of March, 1894, John H. Adams & Sons filed a similar claim for a lien on the same vessel, to secure the payment of $245.07. On the nth day of May, 1894, John A. Evans executed a bill of sale to the appellant for one-half of the “ Moore & Brady.” Struven & Wacker, under the powers contained in the mort
The doctrine of marshalling assets may be stated as follows : “That when one person has a clear right to resort to two funds, and another person has a right to resort to one only of these two funds, the latter may say that, as between himself and the double creditor, that the double creditor shall be put to exhaust the security upon which the single creditor has no claim,” per Lord Westbury in Dolphin v. Aylward, L. R. 4 H. L. 489. As between the mortgage debt of Struven & Wacker, and the lien claim of Beacham
It is contended, however, by the appellant, that under the parol contract with Evans, followed by his possession of the vessel, he had a title be”fore these lien claims attached. If this be so, and the lienors had notice of the claim of the appellant, or by reason of his possession are chargeable with such notice, the case would present a different aspect ; for, in applying the rules for marshalling funds, the maxim, qui prior est in tempore potior est in jure has peculiar force. Robeson's Appeal, 117 Pa. St. 628 ; Hastings case, 10 Watts, 305 ; N. Y. L. Ins. Co. v. Vanderbilt, 12 Abbot’s Prac. 460; 2 Beach Mod. Eq. Jur., sec. 785.
The cases cited by the appellant’s counsel to sustain his contention, that by a parol contract, accompanied with delivery, a good title would pass, even as against bona fide purchasers without notice, do not support that view. In Scudder v. The Calais Steamboat Co., 1 Clifford, 370, (finally decided in 2 Black. U. S. Rep. 373), the questions raised turned upon the rights of an equitable owner, where the agent having the legal title, improperly sold the vessel to a bona fide purchaser without notice. In the case of The Amelie, 6 Wallace, 18, the Court held the Registry Laws of the United States had no application, the vessel not being treated as an American ship; and in Lynch v. The Seminole, 43 Fed. Rep. 168, neither of the bills of sale were recorded. In Crapo v. Kelly, 16 Wall. 610, and Taylor v. Carryl, 20 Howard, U. S. 583, the doctrines applicable to purchasers or lienors, without notice, were not involved. On the other hand, the Act of Congress of 1850, being sec. 4192 of the Revised Statutes of the U. S., provides, that “no bill of sale, mortgage, hypothecation or conveyance of any vessel, or part of any vessel, shall be valid against any person other than the grantor, mortgagor, his heirs and devisees, and persons having actual notice thereof, unless such bill of sale, mortgage, &c., is recorded in the office of the Collector of Customs where such vessel is enrolled.” This section, whenever it has come before the Courts, has always been construed to mean that no transfer not recorded will be available to convey title, except as against the grantor and his representatives and persons with notice. Moore v. Simonds, 100 U. S. 146; Guiding Star, 18 Fed. Rep. 269; The Madrid, 40 Fed. Rep. 682.
In no aspect of the case can we determine that the equity of Dize to ask for marshalling in his favor, is superior to that of Beacham Bro., and of Adams & Sons, and we must therefore affirm the decree of the lower Court.
Decree affirmed.