
    Means, Clark & Co. v. George Worthington et al.
    1. In a suit to foreclose a chattel mortgage, where the court has jurisdiction of the parties in interest, it is not necessary to a decree of foreclosure that the mortgaged property should he within tlie territorial jurisdiction of the court.
    '2. The mortgagee of the undivided half of a vessel, registered and enrolled at the port of Buffalo, instituted a suit in the Court of Common Pleas of Cuyahoga county, in this state, against the mortgagors and the subsequent mortgagees, to obtain a foreclosure of his mortgage. The personal appearance of the defendants was effected to the suit, and by the final decree it was ordered that, unless they paid the plaintiff his mortgaged debt within a time specified, the mortgaged property should be sold by a master as upon execution. Held, that to enable the officer to make a valid sale under an order issued in pursuance of the decree, it was not necessary that the vessel should he present, or under his control, at the time and place of sale.
    3. Courts of equity, in ordering a sale of property, follow the rules regulating sales on execution, when they are applicable. But where the subject with which the court is dealing is such that these rules can not be ap- , plied, without defeating the ends of justice, they will he disregarded.
    Error to the District Court of Cuyahoga county.
    On the 13th day of November, 1862, the plaintiffs in error, Means, Clark & Co., filed their petition, in the Court of Common Pleas of Cuyahoga county, against George Worthington, the City Bank of Cleveland, Silas Merchant, and Charles Marsden, who were duly served with process.
    The plaintiffs set forth in their petition that they are the holders of the second mortgage on the undivided half of two propellers, the Raciue and the Pittsburg; that Worthington held the first mortgage on the same property; that a third mortgage was held by the City Bank of Cleveland, and that Merchant and Marsden, the original owners of the mortgaged property, were the mortgagors, who executed said several mortgages.
    The petition also avers that under a decree reudered in a suit instituted by Worthington against the other parties in interest, said mortgage property was ordered to be sold by a master commissioner, and that at such sale Worthington became the purchaser. This sale is alleged to be void, for the reason that the propellers were not present at the time and place of sale. But if not thus void, it is charged to be fraudulent by reason of certain collusive arrangements alleged to have been entered into by Worthington with Merchant, and one Ensign to whom Worthington subsequently sold the property.
    The petition prays for an account, and for general-relief against Worthington.
    The City Bauk, in its answer, makes substantially the same averments against Worthington, and prays for similar relief in regard to its mortgage.
    As to all the allegations affecting Worthington’s title acquired by the master’s sale, he joined issue. On the final trial, in the District Court, at the September term, 1866, the' issues were found in favor of Worthington, and the suit against him was dismissed.
    There was no motion for a new trial. But a bill of exceptions was taken, which, after setting forth all the evi.1 denee, contains the following:
    “And thereupon the testimony on both sides having closed, the plaintiffs and said defendants, the City Bank of Cleveland and Charles Marsden, asked the court to hold and decide, as matters of law, that the judicial sale so made by said Abbey, as master commissioner, under said order of said Court of Common Pleas, of the one-half of said propellers, was absolutely void by reason of the absence of said, propellers from the place of sale atthe time such saléis claimed to have been made. And likewise to hold and decide that such sale was void by reason of the alleged arrangement1 for the resale, by said Worthington to said Ensign, of said, half of said propellers. But said court refused so to hold and decide, but, on the contrary, did hold and decide— “First. That said sale, so made by said Abbey, master-commissioner as aforesaid, was a legal and valid judicial sale, notwithstanding the absence from the place of such sale at the time the same was made, of the said propellers, as;. in said pleadings alleged.
    “ Second. That an arrangement for the resale of said half of said propellers, by said Worthington (in case he should bid in the same) to said Ensign, upon the terms disclosed1, by said testimony, in which the court found there was no fraud, if made, did not vitiate said sale.”
    In regard to the sale in question, the bill of exceptions,., among other things, shows the following facts: That on March 4, 1857, Silas Merchant and Charles Marsden were the owners of one-half of the propellers Racine and Pitts-burg, and one-half of their boats, apparel, etc.; that said propellers were enrolled and licensed at the port of Buffalo, in the State of New York, and in the enrollment Charles-Ensign is made the managing owner of said propellers, and on said 4th day of March, 1857, Silas Merchant and CharlesMarsden made and delivered to Luther Moses a mortgage-on their half of said property to secure the sum of §11,500,. evidenced hy sundry promissory notes, which notes and mortgage were subsequently assigned to Worthington.
    That afterward, and on August 17, 1858, said Charles; Marsden and Silas Merchant, being indebted to the plaintiffs,. Means, Clark & Co., made and executed a second mortgage-on the same property, to secure to said plaintiffs an indebtedness in the sum of §10,433.36; and on February 5, 1869,. said Marsden and Merchant made and executed a third mortgage on said property, to secure an indebtedness to the City Bank of Cleveland, in the sum of $13,880. These' mortgages were duly recorded at the port of Buffalo.
    On July 30, 1859, Woi'thington’s mortgage having become absolute, he filed bis petition in the Court of Common-Pleas of Cuyahoga county for its foreclosure. To this petition the mortgagors and mortgagees, and Ensign, the-owner of the other undivided half of the propellers, were-made parties and duly served with process.
    The mortgagors severally answered, setting up their respective mortgages, and asking that the proceeds of the-sale of the mortgaged property might be distributed to the-parties according to their respective priorities.
    On June 25, 1860, the cause was heard on the report of the master to whom the cause had been referred. The final decree, after adjusting other matters, proceeds as follows:.
    “And the court further find that Merchant and Mars-den duly executed a mortgage on one-half of the propellers-Racine and Pittsburg, and upon one-half of their respective-, masts, bowsprits, sails, boats, anchors, cables, and upon one-half of their respective necessaries and appurtenances thereunto belonging, and that said mortgage was given to secure-the payment of said sum of $13,042.32, and that the same is the first lien upon said mortgaged property; the court therefore order, adjudge, and .decree, that unless the said Merchant and Marsden, or the subsequent mortgagees,. Means, Clark & Co., or the City Bank of Cleveland, pay,. ■or cause to be paid, to tbe plaintiff tbe said sum of $13,042.33, and pay the costs in this case by the first day of July next, that an order of sale issue to a master commissioner of this ■court, commanding him to sell said mortgaged property as upon ordinary executions at law, and apply the proceeds of such sale as follows:
    1. In payment of the costs made herein.
    2. In payment of the plaintiff’s claim.
    3. In payment of the claim of Means, Clark & Co.
    4. In payment of the claim of the City Bank of Cleveland.
    Under an order of sale issued in pursuance of this decree,
    the master sold the mortgaged property to Worthington — ■ the Racine for $7,000, and the Pittsburg for $6,400. No ■question is made as to the regularity of the conduct of the master in executing the order, except in so far as it may be rendered ineffectual by the absence of the vessels at the time of-sale.
    The present petition in error is prosecuted to reverse the judgment of the District Court rendered at the September term, 1866, in favor of Worthington.
    
      Stevenson Burke, for plaintiffs in error,
    cited Bakewell & Cole v. Ellsworth, 6 Hill, 484; Sheldon v. Soper, 14 Johns. 352; Linnendoll v. Doe, Ib. 222; 17 Ib. 116; Herod et al. v. Bartley, Adm’r, 15 Ill. 58; Ainsworth v. Greenlee, 3 Murphy (N. C.), 470; 8 Iredell, 482; 4 Ib. 175; Warring v. Loomis, 4 Barb. 484; Tift v. Barton, 4 Denio, 171; Blount v. Mitchell et al., Taylor (N. C.), 80.
    
      5. O. Griswold, for City Bank of Cleveland,
    argued orally.
    
      Canfield Caskey and S. J. Andrews, for George Worthington :
    All pei’sons interested were parties, and the Common Pleas had jurisdiction of them, and of the subject matter -of the action.
    This subject matter was a creature of the sea — subject to •federal control and legislation; its value, sale, and use, depends upon federal law. See act of 1793 1 United States Stat. - at Large, 305 ; act of 1831, 4 Ib. 487; act of 1838, 5 Ib. 304; act of 1852,10 Ib. 61; and act of 1850, 9 Ib. 440.
    Tliis property may be sold or mortgaged by the owner, though at sea, and the sale or mortgage will take effect at once without immediate possession by the vendee or mortgagee, 1 Parsons’ Maritime Law, 78; Lord v. Ferguson, 9 N. H. 380; Brooks v. Bondsey, 17 Pick. 441; David Joy et al. v. Sears, 9 Pick. 4; Brinley et al. v. Spring, 7 Greenl. 241; Wheeler v. Sumner, 4 Mason, 183.
    The order of the Common Pleas did not require the master commissioner to take /possession, but to sell. It could not order him to seize the vessels, for, by their enrollment, the possession and control was in Charles Ensign, whose interest was not affected by the mortgages.
    It is not necessary to a valid sale of vessel property, that it should be present at the time of sale.
    It has been the practice of admiralty courts for a great many years, to sell vessels and vessel property, without its being present at the time of sale, on maritime liens.
    Admiralty courts have even gone so far as to seize vessels, and then adjudicate them, and sell them when the vessels were in foreign countries. The Christopher, Robb’s Admiralty, 207; Hendrick and Maria, Baar 4, Robb’s Admiralty 43; note, 6 Robb, 139.
    But if by possibility we are mistaken in this, then we say any irregularity in the sale was cured by the conduct of the plaintiffs and the City Bank of Cleveland.
    They also cited Abbott on Shipping, 36 ; Perry on Trusts, 40, sec. 70; 2 Hilliard on Mortgages, 480 ; 8 Mass. 287; 24 Wend. 116; 40 Maine, 524.
   White, C. J.

The court, on the trial, found the purchase of Worthington at the sale by the master commissioner to have been made in good faith, and there was evidence in the case to warrant that finding. The requisite steps not having been taken in the court below, by motion for a new trial, to authorize this court to review the finding as to the weight of evidence, our inquiries are limited to errors of law arising on the record.

The only error of this character here relied on, consists of the supposed invalidity of the sale by the master.

It is contended for the plaintiff in error, that the sale was void by reason of the absence of the propellers at the-time the sale was made.

In support of this proposition, cases were cited to show that a sale of personal property under execution is void,, unless the property is identified and open to the inspection of bidders, so that they may form an estimate of its value-

It is also contended that as the vessels were not within the jurisdiction of the court, the latter had no power to-order the sale; or, if the court had such power, it did not undertake to exercise it, and that the decree only authorized the master to sell in case he could get possession of the property.

Construing the order of the court with reference to the’ subject matter, and in the light of the pleadings, it was the-manifest understanding of both the court and the parties, that the vessels were not expected to be present at the sale-It appeared from the mortgages which it was the object of the suit to foreclose, that the vessels had been duly enrolled at the port of Buffalo,'and that they were in the possessions of Charles Ensign, the owner of the other undivided half, who had been constituted the managing owner. No provision had been made during the pendency of the suit forgetting possession of the vessels by order on the parties or otherwise, if such a thing were practicable. Nor was any such provision contained in the final decree. The master was not ordered to obtain possession before proceeding to execute the order of sale; and the issuing of the order was made contingent only upon the non-payment of the amount found due the plaintiff by the decree.

It is true that, by the order of sale, the master was commanded to sell the mortgaged property as upon execution’ at law, and to apply the proceeds of sale to the payment of' the demands specified. But this was not intended to make-■the execution of the power of sale contingent upon the unere chance of his getting possession of the vessels. Full power was intended to be vested in the master to make the sale, notwithstanding the absence of the vessels; but, in executing the power, he was required, in all other respects, to conform to the law regulating the sale of similar property upon ordinary execution.

In so far as the sale is supposed to be impeachable on ■the ground of a want of power in the court to sell the vessels, because they were beyond the territorial jurisdiction ■of the court, the objection rests on a misconception of the remedy sought, and of the nature of the jurisdiction called into exercise by the case. The plaintiff, Worthington, was mortgagee, whose mortgage had become absolute. The defendants were the subsequent mortgagees, and the mortgagors, the appearance of all of whom had been duly • effected to the suit. The jurisdiction of the court, therefore, over the parties was complete.

The object of the suit was to foreclose the equity of re«demption held by the defendants against the plaintiff’s mortgage. This could as well be done, on their failure to redeem within the specified time, by ordering a sale through ,& master, as by compelling a release or cutting off the ^equity by absolute decree. The nature of the suit was not that of a proceeding in rem, but in personam; aud the court, ;as a court of equity, had full authority acting upon the parties, to deal and adjudicate in respect to the rights of the parties in the property, without regard to where the property itself was located, as the ends of justice might re-squire. 2 Spence’s Equitable Jurisdiction, etc., 6, 7; Booth v. Clark, 17 How. 332; Portartington v. Soulby, 2 Mylne & K. 108.

It may also be remarked, that the subsequent mortgagees .are the only parties here seeking to impeach the sale.

Courts of equity, it is true, in ordering a sale of property follow the rules regulating sales by ordinary execution, ■where they are applicable. But where the subject with ■■.which the court is dealing, is such that these rules can not be applied without defeating the ends of justice, the same necessity out of which the system of equitable remedies originated, requires such rules to be disregarded.

Judgment affirmed.  