
    Case No. 7,246.
    The J. B. LUNT.
    [11 N. Y. Leg. Obs. 137.]
    District Court, S. D. New York.
    1853.
    
      G. F. Betts, for libellants.
    C. Van Santvord, for claimant.
   BETTS, District Judge.

1. As between Hardy and the libellants, the latter, by force of the mortgage, are entitled at law to have possession of the brig against him, and hold it until satisfaction of the debt secured by it (Fuller v. Acker, 1 Hill, 473), and the right of possession is not interrupted by a seizure and sale under execution against the mortgagor while the possession remains with him (Id.). The conveyance of the vessel by way of mortgage, vested the legal title in the libellants, and would be sufficient to carry even the proceeds to them had she been disposed of. De Wolf v. Harris [Case No. 4,221]; 2 Denio, 172; Id. 344; 3 Denio, 33.

2.The legal title vested in the libellants by the bill of sale entitled them to take possession of the vessel against the mortgagor without suit Every outside equitable interest with which the legal title is opposed, must be left to the cognizance of other courts than the admiralty. The Sisters, 5 C. Bob. Adm. 138; 3 C. Rob. Adm. 176; 4 C. Rob. Adm. 225; Patchin v. Pierce, 12 Wend. 61. The court of admiralty has jurisdiction of actions to reclaim possession of vessels in behalf of the party holding the legal title. Abb. Shipp. 131, note 1. Judge Woodbury, in running over all the cases, admits it to be so when the consideration is of a maritime character. Leland v. The Medora [Case No. 8.237],

3. The claimant proves no tender of the debt on demand of it when the mortgage became forfeited,, nor previous suit brought. The assertion of a willingness to pay, not accompanied by proof of ability to perform, would raise no equity in behalf of the mortgagor, even if the court is permitted to take into consideration a bona fide attempt to satisfy the mortgage debt at such time. 3 Denio, 33; 12 Wend. 61. Although on the question of costs, such attempt would justly have great weight in behalf of the mortgagor or his assignee.

4. This mortgage being given by a foreign owner of the vessel for a maritime consideration, its lien is complete on compliance with the act of congress, and the mortgagee is not compelled to register it also under the state law. But the claimant is not in a position to raise the question of registry, because the sheriff sold him no more than the right and interest of the mortgagor in the vessel, and' because he had actual notice of the existence of the mortgage and the consideration for which it was given.

5. The action is not to enforce payment of the money secured by the mortgage, and the court is not therefore required to meet the question which seemed to weigh with Judge Woodbury,—Dean v. Bates [Case No. 3,704]; Leland v. The Medora [supra]; Packard v. The Louisa [Case No. 10,652],—whether a mortgagee can resort to admiralty to foreclose his mortgage. This suit seeks to carry into effect the legal title of the libellants to the possession of the vessel, as against the right of the mortgagor alone, and when the possession is secured, the holders would be subject to the control of the proper judicatory in the exor.cise of their rights as mortgagees, and the allowance of all equitable interests of the claimant standing in the place of the mortgagor. The possession in point of fact was in the libellants, by admission of the mortgagor, when it was divested by the sheriff under the direction of the claimant.

6. In my opinion, the libellants are entitled to a decree for restoration of possession of the vessel to them. Independent of the legal title to possession, they had it in fact through their agent, Daggett, and, in relation to a vessel, the possession of the master and mortgagor, continuing after it •is demanded by the mortgagees, becomes, as against him and a third party taking his interest with full notice, the possession of the mortgagees. It was not necessary to the protection of tl^eir rights against the claimant that they should have displaced the mortgagor from the vessel.

7. The question of costs will be reserved to enable the claimant to satisfy the court that the mortgagor made bona fide effort to satisfy the mortgage debt, and had means to do so before this suit was instituted, or that the libellants were guilty of oppression and inequitable measures in enforcing their legal right.  