The Richmond

20 F. Cas. 731

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: July 1, 1871
• Status: Published

Opinion

BI'

THE COURT.

The proof in the case,, to sustain the libel, comes from the father •of the libelant, William McKenzie, whose deposition has been read in evidence, and this deposition, uncontradicted and unexplained, goes far to sustain the allegations in the libel, and indeed supports it at all points. But the court cannot overlook the circumstances and proofs which counteract the influence of that testimony. These circumstances and proofs satisfy the court that the demand set up in the libel is an unjust demand. The legal presumption is that the wages have been paid by the freight money earned on the several voyages performed by the brig. It is an equitable presumption, also, that the wages are not due. The libelant was agent ■of the father, who procured the advancements to be made to him by Means & Clark to build the brig, and there has been satisfactory proof in the ease that the earnings of the brig were to be paid over to Means & Clark, in the reduction of these advancements. This has not been done. The libel-ant was privy to that arrangement, and being master or mate of the brig, and constantly engaged in all matters with regard to the brig, with his father, it is fair to presume that this libelant was performing his services for the father to carry out the stipulations and understandings of the parties, that the earnings of the brig should be applied to reduce the debt of Means & Clark. This idea is strongly confirmed by the fact that, when each bill of sale was executed by William McKenzie to Means & Clark, that no mention was made by this libelant that he held a claim on the vessel. It is a general principle, founded on law and equity, recognized by all courts, that when a person stands by and witnesses the transfer of property from one man to another, and withholds all information of a claim of his own, he loses his right to the property thus transferred. He is bound, in such a case, to give notice of his claim, that the purchaser may not be deceived by his silence. In the present case, the libelant is the agent to procure the respondents to advance their money to his father on the credit of the brig; he undertakes, with his father, to aid in paying off this money, and then he stands by and sees the father transfer the brig to Means & Clark, without intimating any claim in his own behalf, and they take the brig as security for their debt.

It is too late for the libelant to set up a prior right to that which he has himself aided, and, as may be truly said, has been the principal instrument in placing on the brig, while he has permitted his own claim to lie dormant until the vessel passes into the hands of an innocent purchaser without notice. The father and son have so demeaned themselves, in regard to the claimants’ rights, that it would be a fraud now to seek to divest the claimants of their title to the vessel. The libel must be dismissed, with costs.