The Granite State

10 F. Cas. 964, 1 Sprague 277

Opinion

SPRAGUE, District Judge.

A sale of a vessel by a decree in rem, in admiralty, gives a perfect title to the purchaser, and the holders of liens are remitted to the funds in the registry, which are substituted for the vessel. But the decree relied upon was not for' a sale of the vessel. It only gave possession to the mortgagee. It did not even pass upon the general title.’ In a mere suit of possession, holders of liens are not required to come in and defend; nor is it apparent what defence to the transfer of possession could be made by them, if they were to intervene. The decree, therefore, does not bar the libellant

It is contended, that the claim of the mortgagee, being prior in time to that of the li-bellant, and being duly recorded, must override it ’But this is not a contest for priority between holders of liens. The mortgagee holds a title to the vessel, and is, ordinarily, unless by his own agreement to the contrary, entitled to possession. If he leaves the vessel in the possession and control of the mortgagor, the necessary repairs and .supplies be-’ ing for the’benefit of the vessel, may be for the benefit of the mortgagee, as well as of the mortgagor. It would, moreover, deprive liens founded on the necessities of vessels abroad, of nearly all their value, if they were to be displaced by mortgage titles. Decree for the libellant, $139.78, and costs.

It has since been decided by the supreme court, in The John Jay, 17 How. [58 U. S.J 401, that courts of admiralty have no jurisdiction over questions of property, between the mortgagor and mortgagee of a vessel. See, also, The Angelique, 19 How. [60 U. S.] 240. Before these eases, this jurisdiction had been exercised both in Massachusetts and the Eastern district of Pennsylvania; but the cases were not published. It is now exercised by the court of admiralty in England, by St 3 & 4 Viet. c. 65.