35 F. 785 | W.D. Pa. | 1888
This is a contest over the surplus in the registry of the court from the sale of the steam tow-boat Daniel Kaine, after satisfaction of all maritime liens, and the liens of domestic creditors, for supplies, etc., under the state statute. The commissioner allotted the fund to the several owners of the vessel, according to their respective shares in her. Objecting ■ to this appropriation are—First, the owners of the steamer Twilight, who hold a promissory note signed, “Daniel Kaine, and owners,” and given by the master of the boat; second, R. W. Cowan, one of the owners of the Daniel Kaine, who asserts a lien for advances and disbursements made by him, and also for his wages as master of the boat; and, third,. execution creditors of James Lynn, one of the owners of the boat.
1. The service rendered bj the Twilight being a home service, and not embraced within the state statute, the commissioner, I think, was clearly right in holding that the note given therefor was not a lien on the boat, and hence not payable out of the fund in the registry of the court. The Edith, 94 U. S. 518.
2. The burden of proof is upon Capt. Cowan to establish the allegation contained in his petition, but which is denied in the answer thereto, that the shareholders in the Daniel Kaine were not tenants in common, but partners in respect.tq the ownership of the vessel. 3 Kent, Comm. *155. Has he succeeded in this? The evidence bearing upon this point is as follows: The boat was built by James Lynn, George T. Miller, and R. W. Cowan, who from the first held her in defined shares',— Lynn and Miller each owning seven-eighteenths, and Cowan owning four-eighteenths. Thus was the boat enrolled on February 8,1882. Speaking of her enrollment, Capt. Cowan testifies: “There was no other agreement among us than'that the boat should be as set out in the registry.” In April,1886, George T. Miller transferred his seven-eighteenths in the boat to George B. Kaine. Capt. Cowan further states that there was no written agreement between the owners of the boat as to how she was to be operated, nor any verbal agreement that she was to be run or operated in partnership. However, it seems that, by the tacit consent of all the owners, she was run on joint account. Her employment was in the towing of coal, and at first she was principally engaged in towing for two coal firms, in one of which Lynn was a member, and in the other
“Carriers may doubtless become partners, but not merely by becoming joint owners of a chattel, and using it for a common purpose. And the principle is peculiarly applicable to ships or oilier craft, the exceptions to it in respect to them being always founded in very special circumstances.”
Now, where the vessel is not partnership'property, according lo the clear weight of authority in this country, one part owner has no lien for his advances and disbursements upon the share of his co-owner. The Randolph, Gilp. 457; Merrill v. Bartlett, 6 Pick. 46; Macy v. DeWolf, 3 Woodb. & M. 193, 205; The Larch, supra. Nor does it make any diffei'enee that the part owner making such advances was also the ship’s husband. Macy v. DeWolf, supra; The Larch, supra; Hopkins v. Forsyth, supra; While v. Proceeds, etc., 19 Fed. Rep. 848. In treating of this subject, Mr. Justice Curtis, in the ease of 'The Larch, supra, after remarking that in England the law is now settled against the existence of the lien, said:
“There has been some diversity of decision in this country, but I think it has proceeded from diversity in tile views taken of the particular facts of the eases, rather than from any real difference in principles. That the owners of a vessel may be copartners in respect to that as well as any other property, and that, when they are so, each has a lien, cannot be doubted. But where no such special relation exists, where they are merely part owners, and as such tenants in common, that one, has no lien on the share of another for advances, I believe to be equally clear.. ”
In so far as the slate statute gave Capt. Cowan a lien for his wages as master, the commissioner allowed his claim, and beyond that it is clear he had no lien, and, therefore,.is not entitled to payment out of the fund in question. The Orleans, 11 Pet. 175; The Edith, supra.
Having thus reached the conclusion that Capt. Cowan had no lien, it is not necessary to consider the objection made to the allowance of his claims by a court of admiralty based on the unsettled and disputed condition of the accounts between the owners of the boat.
3. By virtue of the writ of attachment issued in this case, the marshal seized the Daniel Kaine on February 15, 1887. There was a decree of condemnation on March 2, 1887, and the marshal sold the boat
Such being the facts, the question now to be determined is, what right, if any, the plaintiff in the Payne execution acquired as against James Lynn by virtue of the proceedings in the state court. Did he thereby secure a lien against Lynn’s interest in the boat? It cannot be maintained that the attachment by the marshal, or the decree of condemnation, or both, in themselves and without more, operated to extinguish the title of James Lynn. Subject to the special property which the mar-" shal had acquired by his seizure, and the rights of the libelants, Lynn’s interest in the boat remained in him. Certainly, he might have made a voluntary transfer of his remaining interest. Was it, then, beyond the reach of his execution creditor, whose judgment was in the state court? It is, indeed, undeniable that this court had obtained exclusive jurisdiction over the vessel for all the purposes of the suit which had been here instituted, (Heidritter v. Oil-Cloth Co., 112 U. S. 294, 5 Sup. Ct. Rep. 135;) and it is not to be doubted that property once attached or levied on is in the custody of the law, and is not liable to be taken by another execution in the hands of a different officer, especially if that officer is acting under a different jurisdiction, (Hagan v. Lucas, 10 Pet. 400; Taylor v. Carryl, 20 How. 583; Freeman v. Howe, 24 How. 450.) It will be perceived, however, that the sheriff’s levy here, did not involve the disposition or control of the property. It was made in manifest subordination to and recognition of the right of the marshal to hold and dispose of the vessel. Nor was actual seizure necessary to give efficacy to the sheriff’s levy, as it was made, not upon the res itself, but merely upon the defendant’s interest. Srodes v. Caven, 3 Watts, 258; Welsh v. Bell, 32 Pa. St. 13. But the execution creditor here need not stand on the sheriff’s levy. In Pennsylvania a fi. fa. binds all the defendant’s personal property in the bailiwick, whether there is a levy or not; and the lien attaches from the time the writ is put in the sheriff’s hands. Dim-