256 F. 822 | 5th Cir. | 1919
This is an appeal from a decree which was adverse to the appellant, Louisiana Agricultural Corporation, the plaintiff in a bill in equity against the appellee, Pelican Oil Refining Company, praying that the latter be enjoined from trespassing upon or questioning or slandering appellant’s alleged title and possession of the steam yacht Radha, and for general relief. The averments of the bill showed that the claim of the appellant to the vessel mentioned was
Stern, the purchaser of the vessel at judicial sale, agreed to release or sell it, not to Buck alone, but to Buck and two creditors of his, who held mortgage liens on the vessel, for considerations which included the payment of $400 to Stern. Buck being unable to pay that amount, and the mortgage creditors being unwilling to pay it, with their consent and approval, an arrangement was made with the Metropolitan Bank to pay Stern the $400 upon the delivery to it of a conveyance of the vessel by Stern; there being a blank left in that instrument for the insertion of the name of a grantee. That arrangement was carried out. After that occurred, the vessel capsized in the Mississippi river near its bank in the upper part of the city of New Orleans. From that time until the time of the bringing of this suit it remained there, aground and partly under water. Buck refused to pay the amount owing to the Metropolitan Bank, though often requested to do so. He would not, individually, or as the managing officer of the appellant, agree to a sale of the vessel, though, as stated by a witness for the appellant, it was “going to wreck and ruin.” In this situation the Metropolitan Bank, in July, 1917, entered into an agreement with the ap-pellee, by which the latter agreed to attempt to salve the vessel at its own expense, and, if successful, was to have an option for 30 days after the vessel was floated to buy it for $3,000. Under this arrangement, the appellant took charge of the vessel; no one else then being in possession of it. Up to that time it had no notice that the appellant had or asserted any claim to it.
It follows from the above-stated conclusions that the decree appealed from should be affirmed, except the part of it which ordered the dismissal of the appellant’s bill without prejudice, and that that part of the decree should be reversed, and that the cause should be remanded, with direction to transfer it to the law side of the court; and it is so ordered, each of the parties to be taxed with half of the costs.