Seaver v. The Carroni

21 F. Cas. 939, 40 Hunt Mer. Mag. 319, 1858 U.S. Dist. LEXIS 77

Opinion

BY THE COURT.

The grounds upon which the application is founded are: That the payment by Tappan & Starbuck of the demands of the libelants was an extinguishment of that debt, and the assignment to them of the claim was unavailing to keep the action alive; that they were agents of Penniman, under obligations to him to discharge the debt, and their attempt to acquire its lien to themselves was a fraud upon him, and voided the act so far as respects its interests. I think neither position is established upon the papers before me. The bearing of the evidence plainly is that Tappan & Starbuck were to act for Penniman only under the security of the bill of lading for the voyage, and were under no contract to make advances to him or for the ship upon his personal responsibility. They were his brokers, to collect and receive freights earned by the ship on the voyage proposed, and to disburse them as ship’s husbands and in their own remuneration for such agency; and that the voj’age fell through because of the insufficiency of the vessel for the service she was to perform, — her seaworthiness being the essential condition of the undertaking on their part.

But. independent of all questions upon the merits of the case, the method of relief sought for by this motion must be denied, because of the laches of Penniman in not intervening in the cause, and making his appeal to the court while the suit was in prosecution. The libel was filed July 12, 1S5S, the interlocutory decree was taken September 7th, the report of the commissioner filed September 14th, and the final decree perfected September 16th, ordering a venditioni ex-ponas issued, returnable the first Tuesday in October thereafter, under which a sale of the vessel was duly made by the marshal, and the execution filed in court on the 18th of September. During that period Penniman was frequently in the city urging application to Tappan & Starbuck and others for loans of money on the security of the vessel, and otherwise to relieve his indebtedness. The notice of this application is dated the 29th of September, after all the proceedings had been perfected, and, in effect, in the.direct presence of Penniman, or, certainly, so that, with the slightest diligence, he could, if he did not, in point of fact, know, the position of the case, and every step taken in it, from its inception to its close, and the final sale and delivery of the vessel by the marshal to the purchasers. This state of facts takes from him all equity to set the proceedings aside and require the libelants to prosecute their action anew, especially as no deceit or irregularity in the carrying of the suit is made out against them.

The affidavit of Penniman, imputing fraud in fact to Tappan & Starbuck, in the transaction with which they were connected, is repelled by the affidavits in reply thereto on their part, in so far, at least, that the court cannot rightfully, in that state of the proofs, annul the judgment and sale in the cause, and put the libelants to renew the action. Moreover, it is wholly unnecessary to interfere with that suit by any summary order impeaching its validity, if the allegations of the party making the application for that relief are well founded; because, if the proceedings against the vessel are founded in fraud, they can interpose ■ no impediment to an action by Penniman to reclaim her out of the hands of her purchasers. The onus should be imposed upon him to proceed affirmatively, and show his title to the property, and that the judicial sale was unauthorized and nugatory. This result cannot be obtained by summary motion, and there is no legal reason why he should not assume this burden in the first instance, without invoking the court to cast upon the purchasers of the vessel the necessity of vindicating their title under the judgment, when he, by his negligence or acquiescence, allowed it to be taken in due course of procedure against the vessel.

X consider it, prima facie, no impeachment of the validity of the judgment, or the purchase under it, that Tappan & Starbuck were owners of the debt by assignment when the decree was obtained. They took, as assignees, all the interest in the debt, and power to continue the action, possessed by the original suitors. I accordingly deny the motion to disturb the judgment or sale in this case, as upon the claim of Penniman he has ample remedy to repossess himself of the vessel, if she has been acquired by any fraudulent practices of her purchasers, either in the action against her or her sale.

Ordered that the motion made in behalf of Emory H. Penniman to vacate the final decree in the above cause, and the sale of the vessel under execution thereupon, be denied, with costs.