Best v. . Staple

Earl, C. Section 1 of the act of Congress of July 29, 1850 (1 Bright. Dig., 833), provides that “no bill of sale, mortgage, hypothecation or conveyance of any vessel, or part of any vessel, of the United States shall be valid against any person other than the grantor or mortgagor, his heirs and devisees, and persons having actual notice thereof, unless such bill of sale, mortgage, hypothecation or conveyance be recorded in the office of the collector of the customs where such vessel is registered or enrolled.” Subsequent sections of *76 the same act provide that the collectors of the customs shall record such bills of sale, mortgages, etc., in books to be kept for that purpose, and that they shall furnish certified copies of such records for a compensation specified. It has been held that this act is a proper exercise of the exclusive jurisdiction of Congress, under the Constitution of the United States, to regulate commerce with foreign nations and among the several States, and that it excludes all State legislation in respect to the same subject. (Whites Bank v. Smith, 7 Wall., 646; Aldrich v. Ætna Ins. Co., 8 id., 491; reversing same case, 26 N. Y., 92.) The ground upon which the act is upheld is stated by Judge Nelson, in the first case, as follows: “ Congress having created, as it were, this species of property, and conferred upon it its chief value, under the power given in the Constitution to regulate commerce, we perceive no reason for entertaining any serious doubt but that this power may be extended to the security and protection of the rights and title of all persons dealing therein.” As both Fox, the judgment creditor, and the defendant had notice of plaintiff’s mortgage, it was, therefore, valid, even without any record in the custom-house, as against them, without any compliance with our State statute as to filing mortgages, provided the barge was a “ vessel of the United States.” Was she such a vessel? Section 1 of the act of Congress of December 31, 1792, provides that ships or vessels which shall have been registered as required by the law, and “ no other (except such as shall be duly qualified, according to law, for carrying on the coasting trade and fisheries, or one of them), shall be denominated and deemed vessels or ships of the United States, entitled to the benefits and privileges appertaining to such ships or vessels, provided that they shall not continue to enjoy the same longer than they shall continue to be wholly owned and to be commanded by a citizen or citizens of the United States.” (1 Bright. Dig., 823.) Section 1 of the act of February 18, 1793, in reference to enrolling and licensing vessels to be employed in *77 the coasting trade, provides that ships or vessels enrolled according to the law, and having a license in force, as required by the act, and “ no others, shall be deemed ships or vessels of the United States, entitled to the privileges of ships or vessels employed in the coasting trade or fisheries.” (1 Bright. Dig., 138.) These acts contain provisions showing what vessels can be registered, enrolled and licensed, and the manner in which, and the place where it may be done; and they are the only acts which have come under my observation which define what are vessels of the United States. There is no proof showing that the barge was a vessel of the United States, within the meaning of these acts. There was no competent proof whatever that she was ever registered, enrolled or licensed. There was no proof whatever upon the subject, unless it be the mere statement or recital contained in the mortgage. There is no claim that this vessel was registered under the act of 1792, but the claim is that she was enrolled and licensed under the act of 1793, in reference to the coasting trade. Under the last act, to make her a vessel of the United States, she must have been both enrolled and licensed. If we give full force to all that is stated in the mortgage, there is no proof that the vessel was licensed; all we have there is the enrollment according to section 2 of that act; but we have no license, as required by section i. But the recital is no evidence against the defendant. He is not a party to the mortgage, and does not claim under it, but really in hostility to it. There is not even any proof that the vessel was of such a character, or owned in such way, that she could become a vessel of the United States. Neither is the defendant concluded by the fact that the mortgage was recorded in the custom-house. He was not a party to that transaction. And before the record could be of any account, as against him, the fact that she was a vessel of the United States must have been shown. Hence, there were no facts for the application to this case of the act of Congress of July 29, 1850. But it is claimed that the point that the barge was not *78 shown to he a vessel of the United States was not taken at the trial. The motion for a nonsuit was based upon the ground that the levy and judgment of Fox took priority over the mortgage of the plaintiff; and that the mortgage was void, as to the defendant, because not filed in the town clerk’s office. Upon this motion, the court instructed the jury to find for the defendant. The general language used in the motion is sufficient to comprehend the objection we are now considering. It certainly is not of such a character as to exclude the idea that the motion may have been made upon'the precise ground that there was no proof that the barge was a vessel of the United States; and that the attention of the court was called to this defect in the proof in the oral discussion which probably attended the motion. Presumptions are indulged in, sometimes, to uphold judgments, but rarely, if ever, to reverse them. A party appealing must see to it that his case has been so tried, and that the record is so made up, as to show that the judgment is erroneous. The only further question to be considered is, whether plaintiff’s mortgage was valid as against the defendant under the laws of this State. Section 1 of chapter 279, of the Laws of 1833, provides that every mortgage of chattels which shall not be accompanied by delivery and possession, “shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage or a true copy thereof shall be filed ” as directed in the succeeding section. The debt of Fox was a valid debt for repairs upon this vessel. The judgment-was regularly obtained, and was, so far as I can discover, in all respects, valid. The execution was issued and levy made before plaintiff had taken possession under his mortgage, and the mortgage was not filed. It was, therefore, absolutely void as to Fox, the judgment creditor. The claim is, however, that the defendant who purchased under that judgment must be treated as a subsequent purchaser, and that as he had notice of the mortgage he is not protected. This claim is not well founded. The defendant holds under *79 the judgment as to which the mortgage was void, and stands in the place of the judgment-creditor. Any other construction of the statute would lead to the absurdity that while a mortgage is void as to a judgment, such judgment could not be enforced because, provided the mortgagee would, at any time before sale upon the execution, file his mortgage or attend the sale and give notice of his mortgage, no one could purchase free from the mortgage. This view is sustained by the principles laid down in the following authorities: Hildreth v. Sands (2 J. Ch., 35); Sands v. Hildreth (14 J. R., 493); Bumpus v. Platner (1 J. Ch., 213); Griffith v. Griffith (9 Paige, 315); Thompson v. Van Vechten (27 N. Y., 580). The judgment must therefore be affirmed, with costs. All concur. Judgment affirmed.