'XOWN OF PELlUM V. SCHOONERB. F. WOOLSEY.
THE TOWN OF PELHAM
B. F. WOOLSEY, eta.
(District Court, 8. D. New York.
July 2, 1880.)
Scudder Harter and Mr. Hotchkiss, for H. B. Kinghorn, for Terrell. CHOATE, D. J. This is So libel for wharfage against the schooner B. F. Woolsey, which belongs to this p9rt. She is a vessel engaged in commerce not confined to ports within the state of New York. After she was seized by the marshal, upon the process issued in this case, two parties appeared as claimants, each insisting that he is entitled, as owner, to bond the vessel and defend the suit. The facts respecting their several claims are not disputed. The claimant Daniel H. Terrell is conceded to have been the owner of the vessel. The other claimant is John P. Hawkins. His only title is a. bill of sale from a receiver appointed in a. suit brought and prosecuted to judgmelltin a state court; and the question is whether this transfer is valid, and has extinguished the title of Terren. The suit in which the receiver was appointed was bYouglit. under a statute of New York passed on the eighth day of
May, 1869. Laws 1869, c. 738. The act is entitled "An act to provide for enforcing the lien of innkeepers, boardinghouse keepers, mechanics, workmen, or bailees upon chattel property." The first section provides that any innkeeper, mechanic, workman, or bailee, who shall have a lien upon any chattel property, may commence an action in any court having jurisdiction of the amount of such lien for the enforcement and foreclosure thereof. The second section provides that such action shall proceed in all respects as civil actions in the court in which the same is commenced. The third section provides that the judgment in such action may be the same as in other civil actions in the same court, and in addition thereto, if in favor of the plaintiff, may fix: the amount of such lien, and adjudge the foreclosure of the same, and the sale of the chattel property affected thereby, and specify the officer who shall make such sale, and in such case shall direct the disposition of the proceeds thereof to the payment of the amount of such lien, with the costs of the action, and the costs and expenses of such sale, and shall provide for the safe-keeping of any surplus arising. thereon, and the payment thereof to the owner of such chattel property, or his assigns or representatives. The fourth section gives a right of appeal as in other cases. The fifth section provides that nothing in the act shall be construed to affect or impair the right of any person to enforce or foreclose a lien upon chattel property in any other manner than is therein provided. Hawkins commenced his action in the supreme court of the stat,e, making. Terrell, the owner, and one Whitehead, a mortgagee, the defendants. His complaint alleges that he was, at the times mentioned therein, a shipwright, engaged in the business of building and repairing vessels at City Island, New York; that on the twentieth day of August, 1879, the defendant Terrell was the owner of the schooner, and employed the plaintiff to make certain alterations and repairs
TOWN OJ' PELRAJlt1. SOJIClONER B. P. WOOLSEY
thereon; that in September, 1879, the schooner 'was delivered by Terrell into the possession of the plaintiff for the purpose of having said alterations and repairs made, and the plaintiff thereupon caused work and labor to he performed on her, and materials to be furnished to her, of the agreed price and value of $869.46, which sum said Terrell promised to pay to the plaintiff; that the alterations and repairs are completed, and said sum has been demanded and payment refused; that the said schooner is now, as she has been since she was delivered to the plaintiff, in his possession, and that he has a lien thereon for the value of such alterations and repairsj, that it is necessary, for the safety of the that she be kept at a dock, and ·that a watchman be employed to guard her from danger; that there have already accrued expenses for wharfage and watchman's services, amounting to a con· siderable sum, and that the necessary daily expenses for' wharfage and watchman are about $5.50; that the defend. ants have, or claim to have, Bome interest in, or lien upon, said schooner, which interest or lien, if any, accrued subsequent to the lien of the plaintiff. The complaint then prays judgment that the defendants be foreclosed of all right, title, and interest or equity of redemption in said schooner, and that she may be decreed to. be sold according to law; that out of the proceeds of such sale there be paid to the plaintiff the amount of his said claim, with interest, and the costs of the action, and the expense of keeping the vessel, and that the defendant Terrell be adjudged to pay any deficiency that may remain after the' payment of said claim, interest, costs, and expenses, and that the plain.· . tiff have such other and further relief as in the premises may seem just. Both defendants appeared and answered. Terrell admitted his ownership, subject to a mortgage held'by Whitehead. He admitted the employment of the plaintiff to do work and make repairs on the schooner, but denied that the plaintiff had possession of the vessel, or had any lien on it for his bill, and denied the value and of the work.. and materials, and set up certain damages by way, of set-off or
recoupment. The defeT!<1!1u,tWhitehead denied the plaintiff's lien, andi;let up his mortgage, and denied jurisdiction of the court. The cause was tried by the court without a jury. The judge found that the plaintiff was in possession and had a lien for the amount. claimed, and that the lien was supe. rior to the lien of the mortgage, and that the plaintiff was entitled to a judgment of foreclosure and sale of said schooner, with costs and the expenses of the action, and for the defi· ciency, if any, against the defendant Terrell. Judgment was entered that the schooner be sold at publio auction, by a ref· exee appointed for that purpose, upon ten days' public notice, either or any of the parties to be at liberty to purchase, and that theteferee execute a bill of sale to the purchaser; that the proceeds be applied to pay costs of sale, the plaintiff's costs and expenses, anddebt,....,..the surplus, iifany, to remain subject ,to:the order of. the that the defendant Ter. rell paN the defioiency, if anYl for whiohthe. plaintiff is to have execution; that the purchaser be let into possession on prod,uction of the bill of .sala, and that the defendants, and all persons claiming under them, forever barred and foreclosed of aWiI!'igM, title,: or interest aIidequity of redemption in the said 13chooner.. The judgment was afberwar'ds ,amended by appointing a receiver, instead of a referee, to carry it into ei'fect. The claimant Hawkin-s became the purchaser at the receiver's sale, and holds the.bill of sale executed in pursuance of the judgment. . Tpe only question is whetHer the state oourt had jurisdiotion, or. power and authority, to direct by judgment the sale of the vessel, or, rather, of the defendants' interest therein; for the proceeding does not purport to be, in a' strict sense, a proceeding in rem,-that is, against all the world,-but only a proceeding affecting by judgment and sale the right, title, and interest of the defendants sued in this action. It has been argued on behalf of the claimant Terrell that the testimony in the oase did not show any possession on the part of the plaintiff in the action; that the finding of the cOlirt was in respect thereto against the evidence, or without
TOWN OF PELHAM' 'i1,'sdlIooWR
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any evidence. But it is plain that if, iIi a. case where the plaintiff had possession, the court had. jurisdiction of the cause,; then thelJourt had power and authority to determine the question ot' possession, and the of the court on that fact. cannot be attacked collaterallY by the party against whom finding on that issue is. His remedy is by appeal, or suoh other mode of' review as is appointed by the laws of New York for obtaining a review an,d reversal of the judgment in case of error. In re Griffith, 18 N. B. R. 510., . It is claimed, on behalf of the purchaser Hawkins, that the state court had jurisdiction to order the sale of Terrell's interest in its judgment in that action. It is conceded that the. contract set forth in the complaint in that action, being !I!, contract for the repair of a domestic vessel, is a. maritime; contract.,. This has been held alike by the courts of the United States and by the court' of appeals of NeW Jo.sephine, 39 N. Y. 19; Brookman v. Harn.;,ll, 43 N. Y. 55t; v.Kermit, 59 N. Y. 554-556; The GenerrLtSmith,4Wheat.' 438. The fact that the work as as repairs canno,t m.ake: it the 'less a c?ntr,act; and the must: be taken ,as, qualified by tb.e' other : " ! ,\ -l ,before that!r it was already a vessel f averment make the contract one ior bUlldmg. a vessel, which would not be marithne, the called in one sense new or rebuilt as the result of the altera.· tions and repairs; and I understand thaut, is: not that the contract was not maritime. No question, also,· can be made on the other ha'nd that a' mechanic who takes possession of a vessel, and does work Qn her upon the employment of the owner, has his common· law lien on the vessel, so long as he remains in possession, for the amount of his proper charges, in the same manner. that he would have upon any other chattel. That a suit to a maritime contract is within the admiralty and matitime jurisdiction of the district courts of the United States, is also unquestionable; and that jurisdiction is exclusive,
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except so far ItS by the statute of the United states the jurisdiction is reserved to'the state courts. That statute contains the proviso "saving to suitors in all cases the right of a common-law remedy, where the common law is competent to give it. " 1 U. S. St. 77, § 9; Vose v. Gockcroft, 44 N. Y. 415-425. The question, then, is whether the remedy given by the state court, under the act of 1869, is a common-law remedy, which the common law, as understood in the act of congress, was competent to .give. I think it entirely clear that the remedy was not a common law remedy, nor one which the common law, so understood, was competent to give. It is too clear for argument that the action is not a common-law action, either in its form or effect, or in the nature of the judgment. It is more in the nature, both in its form and in the character of the remedy given, of a bill in equity to foreclose a mortgage. The reservation of the act. of congress relates to well-known forms of action and remedies, distinguished alike from those prosecuted in rem in courts of admiralty, and from those that are peculiar to courts of equity. Equitable remedies, and those which it was competent for equity to give, are not saved where the suit is brought for the enforcement of a maritime contract. It is no answer to say that the proceeding is not strictly in rem because it affects only the right or title of certain defendants against whom the suit is brought. That which is saved to the suitor is not all forms of action, and all remedies other than actions and remedies strictly in rem, but only commonlaw remedies. It is no answer to say that the lien sought to be enforced is not a maritime lien, but strictly a common-law lien. That does not make the new remedy given by this statute a common-law remedy. No lien created by a state law, whether it be by the unwritten and traditional law, which collectively we call the common law, or by express statute, is a maritime lien. Maritime liens are created and exist only by force of the maritime law. 'J;he Belfast, 7 Wall. 624-644. Thus the lien given by state statute to a material man against a. vessel is not a. maritime lien. Yet a court of
TOWN OF PELHAM 'V. SCHOONER
admiralty may, unless restrained by statute or rule, when its jurisdiction is invoked to enforce a maritime contract,give full force and effect to a lien which, by the local law, has been made attendant upon, and a security for, the maritime tract. Not would there seem to be any difference in the power of the admiralty court to give effect to such lien or security, whether in its terms it is a right in the vessel, analogous to a maritime lien, or a lien or security upon the right, title, and interest of a particular owner of the vessel. I see no reason why an admiralty court should not give effect to such a lien as this common-law lien, as well as to a lien created by a state statute. In clothing the courts of the United States with jurisdiction of maritime contracts, it cannot have been intended to leave the suitor without complete enforcement of his rights under the contract, in those courts, what· ever those rights may be. But, if there is any difficulty in that respect, it does not enlarge the jurisdiction saved to the state courts. Nor can this proceeding in the state court be regarded as. a suit upon the lien, apart from the contract, as upon an independent collateral contract; as, for instance, a mortgage given to secure the contract. A lien is not a col· lateral contract; it is a right in, or claim against, some interest in the subject of the contract, created by the law as an incident of the contract itself. The proceeding in the present case was, in form and substance, an action on the contract, and the remedy or relief given in that action was one unknown to the common law. Whatever rights the lien gave the lienor at the common law he can enforce. Thus he can retain possession till the debt is paid. He may reach the title of the owner, perhaps, by an attachment or execution. These are common-law remedies; and, if the common law gave him any other remedy, he is at liberty to pursue it. But no authority is cited for the proposition that the remedy given by this statute, by action and sale under the judgment, is one that was ever open to the lienor at the common law. It is very true that the state statutes heretofore considered and declared unconstitutional have been such as provided a
464 1'emedy, in form, in rem, but the ground of the decisions has been that the remedy given was not It common-law remedy, the itction beIng for the enforcement of a maritime contract. Cases cited above. And the remarks of Mr. Justice Miller, in giving the opinion of the court in The I-line v. Trevor, 4 Wall. 555-571, are strictly applicable to this case: "Suchaetions may also be maintained in personam against a defendant in the common-law courts, as the common law ,es; all in consistence with the grant of admiralty powers in the ninth .aection of tbe judiciary act. But it could not ha:re been the intention of congress, by the exception in that section, to give the suitor all such remedies as might afterwards be enacted by state statutes, for this would have enabled the states to make the jurisdiction of their courts concunent in all cases by simply providing a statutory remfidy for all cases. Thus the exclusive jurisdiction of the federal courts would be . defeated." For these reasons I am of opinion that the state court had no jurisdiction in the action brought therein to direct a sale of the vessel under its decree for the purpose of enforcing the plaintiff's lien. Consequently, the claimant Terrell is alone entitled, as claimant, to bond the vessel and defend.
TAYLOR V. LIFE ASSOCIATIOK OF AMERIOA.
LIFE ASSOCIATION OF AMERICA.
D. Tennessee. August, 1880.)
l. RECEIVER-NoN-RESIDENT-OFFICER OF FOREIGN STATE-PARTY TO SUrr-BOND-NON-HESIDENT SURETffiS.-A public officer of the state of Missouri was authorized, in his official capacity, to wind up an insolvent corporation located in said state, and doing business in the state of Tennessee and some thirty other different states. Such officer was appointed reeeiverof the corporation by the proper court in Missouri, with instructions to collect the assets of the corporation throughout all the states, and hold the same for distribution, subJect to the instructions of the court. Held, that the circuit court for the western district of Tennessee could appoint such officer receiver of the assets of the corporation situated within the state of Tennessee, llpon condition that he should pay the funds into the registry of the court, although he had been made a party defe'ndant to a general creditors' bill removed from the state court for the purpose of winding up the corporation under the insolvent laws of the state of Tennessee. Held, further, that the bond of such receiver was sufficient, although the sureties were resident in the state of Missouri.
Smith ,x Collier, for plaintiffs. Wright,x Folkes and Carr ,x Reynolds, for defendants. HAMMOND, D. J. Application is made to reconsider the order entered, appointing the defendant W. S. Belfe receiver in this case; and objection is taken to his bond because the sureties are non-residents of Tennessee. The facts necessary to be stated are that the Life Association of America was a corporation of the state of Missouri, doing business, as was stated at the bar, in 32 of the states of the Union. It became insolvent, ·and by statutes of Missouri it became the duty of the defendant W. S. Belfe, as 8, public officer appointed by law for the purpose, to wind it up under the insolvent laws of that state. To this end he commenced the necessary proceedings in the proper court in Missouri; and by its decree, the corporation being declared Belfe was appointed receiver, with instructions to collect the assets everywhere in all the states, and hold them for distribution, as required by law, under the supervision of that court. The corporation was also required, and did, by formal v.3,no.9-30 .