THE GENERAL TOMPKINS.
(Circtf,it Court, S. D. Mississippi.
2 REV. ST.
Mo. 1879, § 4225-LIENS. By the provisions of 2 Rev. St. Mo. 1879, § 4225, debts contracted by the owner of a steam-boat on account of stores and supplies furnished for its use, and on account of labor done and materials furnished in repairing, furnishing, and equitJping it, are made liens on the boat. Held, that one who furnishes money with which to payoff such liens has a lien on the boat to the amount of his advances. ' Parts of the same statute may be valid, and other parts void.
2. CONSTITUTIONAL LAW. 3. LIENS UNDER STATE LAWS.
Liens given by the local law of the state of Missouri at the home port of thel vessel will be recognized by this court.
In Admiralty. On appeal. PARDEE, C. J. The intervenor claims proceeds in the registry of the court resulting from the sale of the steam-boat Gen. Tompkins, on the ground that under the laws of the state of Missouri the intervenor has a lien thereon by reason of having paid, at the request of the owner, debts contracted by the owner on account of stores and supplies furnished for the use of the said steam-boat, and on account of labor done and materials furnished in repairing, furnishing, and equipping the said boat. See 2 Rev. St. Mo. 1879, § 4225. The district court having allowed this claim of the intervenor, the owners have appealed. 1. It is objected that under the law of Missouri the intervenor has no lien, as he furnished nothing himself giving a lien, but only furnished money and paid off existing liens. It will be noticed that the wording of the statute is "for all debts contracted, etc., on account of stores and supplied, on account of labor," etc. Where the labor has been done, and the supplies, etc., furnished, and a lien results, it would seem that money used to payoff such liens would be on account of such labor and supplies furnished, etc. But the decisions cited from the supreme court of Missouri, on this question, leave no doubt. See Bryan v. Pride of the 12 Mo. 371; Gibbons v. Fanny Barker, 40 Mo. 254. In tbis last case the court says: "Money loaned for the specific purpose of enabling a boat to purchase supplies, or to pay wages or debts incurred already, or to be incurred in future, for things which are liens, have been held to be a debt contracted for those things, and therefore a lien also on the boat;" and
cites Bryan v. The Pride of the West, 12 Mo. 371; T"4e Gen. Brady, 6 Mo. 558; The Eureka, 14 Mo. 532. I am of the opinion .that under the Missouri law the intervenor had a lien. . 2. It is objected that the intervenor has no lien that this conrt can recognize) because the Missouri lien law, under which the lien is made, is in con:fl.il}t with the constitution of the United States. The remedy given by the Missouri law is, in all probability, unconstitutional. 'fhe cases cited-The. Moses Taylor, 4 Wall. 411; The Hine v. Trevor, Id. 555; and. The Belfast, 7 Wall. 644-are clear on this point. But 1 think the right given by; the Missouri laws can p,e easily separated from the remedy given by those laws. entire, is not obnoxious, but is clearly within state authority, as recognized by the supreme court of the United States. See The Lottawamw, 21 Wall. 581, 582. The following sections of the'Missouri statutes relating to priorities and remedies may be stricken out and this section will stand by itself. 3. It is also objected that the lien 'given by Missouri at the home port will not be recognized out of the state, and thllit this court ought qf not to recognize such a lien. No authorities are cited in this position save those cited in Desty, Adm. § 89; which probably were all cases of priority. In this circuit, where prioritywas not in. volved, such domestic liens have been recognized. See Carroll v. Leathers, 1 Newberry, 436; The Katie, 3 Woods, 182; and Judge ' Hill in this case. See, also, 1 Brown, Adm; 542. 4. It is further objected that the demand of the intervenor 'is prescribed as a lien under the law of Missouri, because no suit was instituted to enforce it within riine months from its creation. Section 4268 of the Revised Statutesot Missouri read's:
"All suits upon liens in any other than the first class shall be commenced within nine months after the true date of the last item in the account upon which the action is founded; and any failure to commence suit, as in this or the last preceding section required, shall discharge the boat or veSsel' from the lien of the demand claimed."
The demands for:Jiens in this case are not within thE! rtJferred to. No suit under this section has been instituted in Missouri at all; and the demand sued on here was filed June 1, 1881. It follows that all the liens claimed as arising nine months prior to that date are .within the statute, allll ceased to have, any effect as against the Tompkins.. , ' The libel of intervention and the evidence show that the debts
paid from which liens arose were paid from time to time from August, 1880, to October,1880. Each payment constituted a separate lien, from which it follows that all payments made prior to September 1, 1880, had ceased to be liens on June 1,1881, when the district court acquired jurisdiction. This settles all the claims made in the first article of the libel of intervention, as they are laid during August, 1880. Under the second article of the libel the claims are alleged as arising (and the exhibits show the fact) during the months of August, September, and October, 1880. Such as are of date prior to September Ist,are proscribed, and were dead liens when the libel was filed. On this second article of the libel of intervention a reference is required to ascertain dates and facts. On the whole case appealed t.. ' accompanying decree will be entered.
(DiBtt'ict Court, 1). New.Jersey; December 3, 1881,)
W.liVER. In the absence of /lny satisfactory explanation, delay in enforcing maritime liens, after a reasonable opportunity to doso, will he deemed a '''River such liens, as against purchasers for value and without notice.
In Admiralty. Libel in. rem. A. Hugg, for libellant. R. L. J enkina, for claimant. NIXON, D. J. This is a. libel in rem for mat,erials furnished and work done by the libellant on the schooner Lauretta, belonging to the port of Baltimore, at. the port of Philadelphia.
The proofs show that in the month of August, 1876, while the ve!'lsel was ,at the city of Camden,in the state of NewJersey, certain materiaJs were . :3upplied and work performed fQr repairs 'upon her by the libellant, at the request of John McMurry, who. was the legally.authorized attorney of the owner, Coleman Taylor, then residing at Baltimore, Maryland. T4e vessel continue4 the property of the said Taylor until the seventh of February, 1877, . when she Wag sold to the claimant by bill of sale duly executed, in which there was a covenant that she was freean:d clear of· all claims, demands, Ol the terms of the sale the purchaser was allowed to retain iphis hands two. or three hundred dollars of the consideJ;ation money for the period of as security against any secret liens or encumbrances . At the end' of six moilths, no demandS having been made againstthevessel, the claimant paid over the residue of the purchase money to the vendar. After the beginning' of the oyster season in Philauelphia,.in the fall of 1877,