
    John C. Baxter and others v. Robert B. Wallace.
    A person, whose real interest in a vessel is only that of a mortgagee, and who has never taken possession of the same, is not answerable for supplies, although he holds a hill of sale, vesting in him the legal title, and the vessel is registered in his name at the custom house.
    The registration of a vessel at the custom house, under a hill of sale, although accompanied by the oath of the person in whose name it is registered that he is the true and only owner, is not conclusive as to the ownership.
    To make a mortgagee responsible for supplies, it must be shown either that he was in possession of the vessel, or that the supplies were furnished at his request, or by the direction of some person authorized to contract in his behalf.
    Appeal by the defendant from a judgment of the Eighth District Court.
    The action was brought to recover from the defendant the value of certain supplies furnished to the brig Hope, in the port of New York.
    It appeared in evidence on the trial that the defendant loaned one Webster a sum of money, to secure which Webster caused to be executed to the defendant a hill of sale of the brig, which vessel Webster had purchased at a Marshal’s sale. Webster took a paper in the nature of a defeasance, wherein it was provided that upon the re-payment of the loan, with interest, the defendant was to re-convey to him or to his order, the title of the vessel.
    The defendant assumed no control over the vessel. The supplies for which the action was brought, were obtained from .the plaintiffs by the mate of the brig, upon the introduction of Webster, the purchaser and mortgagor, and it appeared that the profits of her voyage- accrued wholly to Webster, and not to the defendant.
    Judgment was rendered for the plaintiff, and the defendant-appealed io this' Court,-
    
      
      Dennis McMahon, for the appellant.
    
      A. S. Diossy, for the respondent.
   By the Court.

Daly, F. J.

The plaintiffs sought to charge the defendant Wallace as owner of the brig Hope, for supplies furnished to the brig in the port of New York, where the vessel belonged. To charge the defendant personally it was necessary to show that the supplies were furnished either by his express authority, or under circumstances from which an authority would be implied. The supplies were furnished at the request of the mate of the vessel and one Webster. Webster introduced the mate to the plaintiffs, and told them to deliver what goods he might oi'der for the brig, and to present the bill on board, and that it would be paid. The plaintiffs produced no evidence to show that either Webster or the mate had any authority from the defendant to order the supplies, and the defendant swore expressly that he had never authorized any person to present the bill to him; that he did not know the mate ; had never had any transactions with him ; that he never had possession of the vessel; had never seen her but once ; had nothing to do with the loading of her; did not control her running in any way; had no interest in her profits, and had never employed any officer or any one on board "of her. This was decisive upon the question of authority, and as the plaintiffs were allowed to recover it must have been upon the ground that the defendant held a bill of sale of the bldg, and had made the usual affidavit at the Custom House that he was the owner of the vessel.

The nature of his interest was this; Webster bought the brig at a Marshal’s sale, and to complete the purchase he borrowed $800 of the defendant upon an agreement that the title should be taken in the defendant’s name as a security for the loan. The bill of sale was accordingly made out in the name of the defendant, and a written instrument in the nature of a defeasance was executed by both parties, setting forth" that Wallace bad loaned Webster $800 for" the purpose of enabling him to purchase the brig; that it was agreed that the title should be in Wallace, and that Wallace, upon the payment to him of the $800 and interest, was to transfer the vessel to. Web-, ster or his order. This was hot such an ownership as would make the defendant responsible for supplies furnished to the vessel, though the hill of sale was made out in the name of the defendant. The transaction, as shown by both instruments was, in legal effect, a mortgage. He held the bill of sale merely as security for the eight hundred dollars, and though the legal title was vested in him, his interest was no greater than that of a mortgagee.

It is well settled that a person whose real interest is that of a mortgagee, and who has never taken possession of the vessel, is not answerable for supplies, though he holds a hill of sale vesting in him the legal title, and though the vessel had been registered in his name. (Noartyman v. Hart, 1 Stark. R. 366 ; Hasketh v. Stephens, 7 Barb., 488 ; Leonard v. Huntington, 15 Johns., 298 ; McIntyre v. Scott, 8 id., 159 ; Abbott on Shipping, p. 35 to 40, 182, 8th Lond, ed.)

The registration of a vessel at the Custom House under a hill of sale, although accompanied by an oath that the person in whose name it is registered is the true and only owner, is not conclusive as to the ownership, the object of the registry being simply to determine the national character of the vessel; and though a bill of sale is absolute upon its face, it may be shown that it was intended in fact to operate as a mortgage. (Sharp v. United States Ins. Co., 14 Johns., 201; Weston v. Penniman, 1 Mason, 318 ; Ring v. Franklin, 2 Hall R. 1; Dey v. Dunham, 15 Johns., 555.)

To make a mortgagee responsible for supplies it must he shown either that he was in possession of the vessel (Miln v. Spinola, 4 Hill, 177), or that they were furnished at his request or by the direction of some person authorized to contract on his behalf. Nothing of the kind was shown here, and there was no ground whatever for the judgment.

Judgment reversed.  