Johnson v. Merrill, 122 Mass. 153

122 Mass. 153 | Mass. | 1877

Gray, C. J.

The mortgages from Joyce to the plaintiffs Were not valid as against his attaching creditors, without either a delivery of possession', or a legal record of the mortgages. To constitute a delivery, it was necessary that the mortgagees should cake possession immediately, if the vessel was within reach, or, if she was at sea, then within a reasonable time after her return. Veazie v. Somerby, 5 Allen, 280, 289. Portland Bank v. Stubbs, 6 Mass. 422, 425. Joy v. Sears, 9 Pick. 4. Carter v. Willard, 19 Pick. 1, 9, 11. Although two winters, when the vessel might be expected to and doubtless did return home from her fishing voyages, passed before the attachment, it does not appear that the plaintiffs made any attempt to take possession of her; and they do not now undertake to maintain their title upon the ground of delivery, but rely solely upon the records of their mortgages at the custom-houses.

The acts of Congress require that every ship or vessel of the United States shall be registered or enrolled in the office of the collector of the customs of the district in which is the home port of the vessel, which is that in which her owner, or, if more than one, the husband or acting and managing owner resides; and that, upon the sale, in whole or in part, of a registered or enrolled vessel to a citizen of the United States, she shall be registered or enrolled anew accordingly, otherwise she shall cease to be deemed a ship or vessel of the United States. U. S. Sts. December 31, 1792, §§ 3,14; February 18, 1793, §§ 2, 5; 1 U. S. Sts. at Large, 288, 294, 305, 307. U. S. Rev. Sts. §§ 4141, 4171, 4311, 4312.

The U. S. St. of July 29, 1850, § 1, which provides that no mortgage of any vessel or part of a vessel of the United States shall be valid against any person other than the mortgagor, “ his heirs and devisees, and persons having actual notice thereof,” unless “ recorded in the office of the collector of the customs where such vessel is registered or enrolled,” is limited in terms and effect to vessels of the United States. 9 U. S. Sts. at Large, 440. U. S. Rev. Sts. § 4192. White's Bank v. Smith, 7 Wall. 646. Veazie v. Somerby, 5 Allen, 280.

The vessel in question being duly enrobed in the port of Gloucester, where the owners of three fourths of her then resided, those owners sold their shares to Joyce, who resided in Boston and became the managing owner; and the vessel, not having been thereupon registered or enrolled anew in the office of the collector of customs of the port of Boston, ceased to be a vessel of the United States; and the subsequent mortgages of her to the plaintiffs by Joyce, without having obtained or applied for any new register or enrolment, were not governed by the U. S. St. of 1850, and acquired no validity as against his attaching creditors by being recorded in the custom-house at Boston or at Gloucester.

The mortgage in the second case is open to the additional objection that it was not recorded at Boston, the permanent home port of the vessel, as required by the U. S. St. of 1856, but only at Gloucester, from which, after the sale to Joyce, she would be entitled to no more than a temporary register or enrolment. U. S. St. 1792, § 11; 1 U. S. Sts. at Large, 292. The decisions in Potter v. Irish, 10 Gray, 416, and Chadwick v. Baker, 54 Maine, 9, in which a different view was taken of this point, have been overruled by the Supreme Court of the United States. White's Bank v. Smith, 7 Wall. 654. Aldrich v. Etna Ins. Co. 8 Wall. 491. Judgments affirmed.