17 Ohio St. 359 | Ohio | 1848
The simple question raised and discussed in this case, is, whether the execution of a mortgage upon a steamboat or other water craft, withdraws such craft, until such mortgage is satisfied, from the operation of the law, which authorizes proceedings against her by name. True, this is not the exact shape of the question, but if is the substance of it. It is not denied that the judgments rendered in the suits commenced previous to the execution of the mortgages must be first satisfied. But it is claimed, that the mortgages miist be preferred to the subsequent judgments.
I had supposed that the question now raised had been heretofore definitively settled by decisions made in this Court. In the case of Kellogg et. al. v. Brennan et. al., 14 Ohio Rep.
In the case of Jones & Watkins v. Steamboat Commerce, 14 Ohio Rep. 408, it is expressly decided that the private sale of a steamboat or other water craft, transfers to the purchaser the property in the same state in which it was held by the vendor, and subject to the same liabilities. Notwithstanding the sale, the craft may be seized for a pre-existing debt. And if she may be so seized, after absolute sale, surely she may be so seized after a mortgage. The mortgagee can acquire no better right than could a vendee. By a fair construction of the Statute, as well as by the force of these decisions, we feel ourselves compelled to hold that the mortgage of the complainants must be postponed to the debts of the judgment creditors.
A question is made as to the distribution of the fund between the judgment creditors, but I am not aware that it comes within the province of this Court to decide it at the present time. The fund was restrained in the hands of the sheriff by the ac
The bill is dismissed at complainants’ cost.