The exceptions to the report of the special commissioner seem to be well taken, in so far as they are based upon the lack of any order of reference to take proof andl report upon any issue or question of law. But the report, in so far as it reports facts, will be confirmed, and the question of priority or ownership, having been presented on the merits, will be disposed of by the court.
The yacht was to be paid for by notes falling due at times now past. If the contract of sale be treated as a conditional bill of sale, it had to be acted upon; that is, a default had to be declared according to its terms. This was not done until after sale by the United States marshal. The vendee has been ready and willing to meet the notes, and now consents to their payment, with the costs of the proceeding, out of the fund. The vendor seeks to elect to take the entire fund in the place of the boat. Such a forfeiture, as the result of an election made after the conditions have been waived, and after it has appeared that no loss will result to the vendor if the contract be carried out, would’ be contrary to the equitable principles governing a court of admiralty.
The petitioner, Brooklyn Trust Company, may have a decree awarding to it the amount due upon the notes held by it and its costs herein. The balance of the remnants and surplus will be paid to Rudi De Graff.