Majority
p. 177Miln vs. Spinola.
Headnote
A mortgagee of a ship, who has taken possession and caused it to be registered in his own name, will, in general, be liable for supplies furnished and repairs madej and this, though his relation to the ship was unknown to the creditor when the demand arose.Error to the New-York C. P. Spinola sued Miln in the court below for supplies furnished to the ship Henry Kneeland, amounting to $146,54. On the 10th of March, 1840, David H. Robertson executed an absolute bill of sale of two thirds of the ship to the defendant; and on the 10th of April following, the defendant, on his own oath that he and one Thomas D. Bickford were the only owners of the ship, took out a register in their names. The defendant took immediate possession of the ship, and in November following the supplies in question were furnished, when the ship was about sailing from New-York for Gibraltar. The defendant proved that the bill of sale, though absolute in its terms, was in fact intended as a mortgage security only. The judge charged the jury, in substance, that the mortgagee in possession was answerable for supplies furnished to the ship, and the fact that the plaintiff did not know that the defendant was owner at the time the supplies were furnished would not alter the case, unless the plaintiff had given credit exclusively to some one else. The defendant excepted, and, judgment having been rendered against him, sued out a writ of error,
J. W. White, for the plaintiff in error.
v2. S. Garr, for the defendant in error.
By the Court,
Although the mortgagee of a ship who has not taken possession cannot be charged as owner; yet where he is in possession, and has caused the ship to be registered in his own name, I see no reason why he should not be regarded as owner, and as such, answerable for supplies
p. 178
furnished, and repairs made upon the ship. (Champlin v. But ler, 18 John. R. 169 ; Tucker v. Buffington, 15 Mass. R. 477 ; and see 3 Kent’s Com. 133—6 ; Abbott on Ship. 17—19, and note (1), p. 19.) In most of the cases where the question has been discussed whether a mortgagee out of possession could be charged as owner, it has been taken for granted that he might be so charged if he 'had taken possession, and I am not aware of any good reason why such should not be the rule.
Although the plaintiff probably expected to get his pay from Robertson when the supplies were furnished, he charged the goods to the ship “ and owners,” and I think he was at liberty to resort to the defendant.
Whether the judge was right or not in his comments upon the evidence, is a question which cannot be made on a writ of error.
Judgment affirmed.