
    Stephen Glover and George B. Lapham versus Nathaniel Austin.
    In November, R, in contracting to build a ship for G, agrees to find all and do all in the carpenter’s line, and to launch the ship and deliver her to G in September following,- G stipulating to pay for her a certain price per ton in thirty days aftei the delivery ; and in another instrument of the same date, R leases his ship-yard to G, and covenants, as soon as the keel shall be laid, to execute a bill of sale of the ship, before G shad De liable to make advances. G and one L, on the same day, agree that the ship is for their account and risk, and that they will sustain their respective proportions of profit and loss. On the 12th of May following, in consideration of advances made by G and to secure him against loss, R executes to him a conveyance of all the lumber and materials in the yard, and covenants to apply them to the building of the ship ; but this instrument is made before the keel is laid. On the 20th of May, the keel being laid and the stem and stern posts raised, R, to secure the performance of the contract of November to build a ship, executes to G a conveyance of “ the keel and other parts of an unfinished vessel, being the same vessel contracted to be built by the instrument of November,” with a lease of the ship-yard, and makes a symbolical delivery ; and die instrument contains a condition, that if G shall neglect to fulfil his part of the contract, the conveyance shall be void, and likewise a covenant by G, that R shall have free ingress into the yard to finish and launch the ship. Held, that these contracts were not fraudulent per se9 nor uníawful ; that the contract of May 12th was inoperative as a conveyance of the ship ; but that by virtue of the contracts of November and of May 20th, the property in the keel vested in G, subject to the condition mentioned, and drew after it all the subsequent additions ; and that an action of trespass against a sheriff who afterwards attached the ship on the stocks as the property of R, was rightly brought by G and L jointly.
    Trespass against the defendant as sheriff of Middlesex, for taking and carrying away the hull of an unfinished ship. The defendant pleaded the general issue, which was joined ; also a special plea, in justification, alleging that the ship, on the 12th of August, 1826, (the day on which she was taken.) was lying on the stocks in the shin-yard of Edward and Henry Rogers, shipbuilders and copartners, in Medfoiu, aim was their property, and not the property of the plaintiffs, and that one Emerson, a deputy of the defendant, by virtue of divers writs of attachment against E. & H Rogers, attached and took the ship as their property. The plaintiffs replied that the property in the ship, at the time of the attachment, was in themselves, and tendered an issue to the country, which was joined by the defendant.
    At the trial, before Wilde J., the plaintiffs gave in ev> dence a contract under seal, dated November 10, 1825, between E. & H. Rogers and Glover, by which the Rogerses contracted to build for Glover a ship of the model and dimensions therein specified ; to find all and do all in the carpenters line ; and to launch the ship and deliver her at a wharf in Boston, on or before September 1, 1826 ; and on the fulfilment of the contract, they were to be paid for every ton she should measure, 21 dollars and 75 cents, within thirty days after she should be delivered in Boston.
    The plaintiffs also gave in evidence an instrument in writing, dated the same 10th day of November, signed by Glover and Lapham, by which it was agreed, that the ship was for account and risk of Glover, Lapham, and one Freeman, that Glover should have one half, and Lapham and Freeman one quarter each, and that they should sustain their respective proportions of profit and loss. This instrument was not signed by Freeman ; who, being called as a witness, testified that he was a minor at the time, and that it was agreed between him and Glover, that he might take one quarter of the ship when she should be finished.
    The plaintiffs proved that the copper and iron work, which were put into the ship, were fitted and prepared at the shop of Lapham, in Medford, he being a blacksmith, and were delivered by him to the Rogerses, but upon what terms and under what contract with Glover was not stated ; except that H. Rogers testified, that Lapham told him he charged the iron work to Glover in the same manner as he did to Magoun, a shipbuilder at Medford. The value of the iron and copper put into the vessel was estimated at from 1300 to 1500 dollars.
    The plaintiffs gave in evidence an instrument under seal between the Rogerses and Glover, dated the same 10th of November, whereby the Rogerses leased their ship-yard to Glover, and likewise covenanted to make to him, as soon as the keel of the ship should be laid, a conveyance or bill of sale of the ship, before he should be liable to make advances.
    The plaintiffs then gave in evidence an instrument under seal, dated May 12, 1826, executed by the Rogerses and Glover, whereby, in consideration of one dollar paid and advances made by Glover, and to secure him against all loss, the Rogerses conveyed to him all the lumber and materials in their ship-yard. The instrument contained a lease of the yard, and a covenant of Glover to deliver up the same at the expiration of the lease, and a covenant of the Rogerses to apply the materials to the building of the ship.
    The plaintiffs also gave in evidence a conveyance or bill of sale, under seal, dated May 20, 1826, from the Rogerses to Glover, in which the contract of November 10th, to build the ship, was recited, and by which the Rogerses, in consideration of one dollar and to secure the performance of that contract, conveyed to Glover the keel and other parts of the unfinished ship, then lying on the stocks. This instrument contained also a lease of the yard, and a condition, that if Glover should neglect or refuse to make his payments or to fulfil his part of the contract, the conveyance should be void ; and Glover therein covenanted, that the Rogerses should have free ingress, egress, and regress, at all times during the term of the lease, into the demised premises, with their workmen, laborers and servants, and with their materials, for the purpose of working upon, completing, launching and removing the ship, so long as they should truly and faithfully proceed in the execution of their contract above mentioned, to build the ship.
    The plaintiffs proved that Glover advanced, at divers times, a large sum of money, the first advance being 1000 dollars on the 29th of March, 1826, and the last, 500 dollars on the 1st of August, 1826. It appeared that the Rogerses did not apply the money so advanced, specifically to pay for the labor and materials upon and for the ship, but used it indiscriminately for that and other purposes, as their necessities required.
    The defendant offered evidence to prove that the bill of sale of the 20th of May, as well as that of the 12th, and all the leases, were not known or made public, but were kept secret fraudulently by the Rogerses and Glover, and that a fals > credit was thereby given to the Rogerses, whereby their creditors were deceived, and all those who worked upon the ship, and who furnished materials for her, sustained a great loss.
    It was testified on the part of the defendant, that more than one half, and on the part of the plaintiffs, that not more than one third of the materials worked into the ship at the time of the attachment, was brought into the yard after the 20th of May. It appeared that the Rogerses contracted in June 1826 to build a brig for Hall and Curtis, which was on the stocks at the time of the attachment, and was attached with the rest of the property ; that they were in the habit of using the materials in the yard for the brig or the ship, just as it happened, indiscriminately, without regard to the circumstance of such materials having been in the yard or not, on the 12th of May ; that they occasionally sold a single stick of timber from the yard when applied to for that purpose ; and that the timber was thrown together promiscuously.
    It appeared that the ship was of about 360 tons burden, and that it cost to finish her, after she was sold on the sheriff’s sale, 2,775 dollars. It was testified, that nothing but the keel was laid and the stern and stem posts raised, on the 20th of May ; that a few frames had been got out and brought together, but that none of them were raised at that'time.
    A few days afterwards H. Rogers gave Glover possession, by delivering to him a chip or piece of wood in the ship-yard, in the presence of one witness, and then most of the frames of the ship were up.
    It was testified by J. Hunnewell, one of the defendant’s deputies, that he saw Lapham several days after the commencement of this suit, and asked him why he had sued the sheriff, and Lapham replied that he had commenced no action and had no knowledge of any ; that he had nothing to do with any suit or with the ship. The defendant produced a letter Written to him by Glover, in which Glover says the ship is exclusively his property.
    The jury were instructed, that the property in the unfinished ship was effectually transferred by the bill of sale, provided the same was bona fide, and that after the execution of it the ship was not, according to the legal construction and operation of that and the other instruments produced by the plaintiffs, liable to be attached as the property of the Rogers-3s ; that the same r de applied to the whole of her, including that part which was constructed out of materials bought by them after the 20th of May.
    
      March 18th.
    
    The jury were likewise instructed to consider the action as rightly brought by Glover and Lapham jointly, and to find for the plaintiffs, unless they were satisfied that the transaction was infected with actual fraud, and that the making of the bill of sale was kept secret fraudulently and by design on the part of Glover.
    The jury found for the plaintiffs. If in the opinion of the Court this action could not be sustained, or if any of the instructions to the jury were wrong, a new trial was to be granted ; otherwise judgment was to be rendered on the verdict.
    
      Hubbard and Morey, for the defendant.
    Under the agreement of November 10th between the Rogerses and Glover, which was an absolute contract to build and deliver a ship of a particular description, but not a particular ship, the property would remain in the builders until the ship should be finished and delivered. Mucklow v. Mangles, 1 Taunt. 318; Chit. Contr. 112; Long on Sales, 168. Glover, it is true, was to furnish the copper and iron work, but as the timber, which is the principal material, giving form to the ship, was to be furnished by the builders, the whole would belong to them by right of accession. 2 Kent’s Comm. 294; Bract, lib. 2, c. 3, § 3, 4. Cases may be found where payments are made from time to time as the building proceeds, and the ship is transferred by instalments ; but this case is different. Here the money was advanced without regard to the progress of the work. It was in fact a mere loan. Glover could not have been compelled to make the advances, and if he could, it would not alter the nature of the contract.
    Then what is the effect of die subsequent deeds of the 12th and 20 th of May ? We contend that the first of them is wholly inoperative. There was no witness to it, no formal act ot delivery, no notoriety. It was treated as a nullity by the Rogerses, and this was known to Glover. If it had no operation, then the builders continued to furnish the materials for the ship. Clow v. Woods, 5 Serg. & Rawle, 282.
    
      On the 20th of May, Glover calls for a hill of sale of the keel and stem and stern posts ; which shows that he did not consider himself entitled before to the unfinished ship. Supposing this conveyance to be valid, could that small part draw after it all the subsequent additions ? But what is this instrument ? It is not a contract of sale. It mentions no price, nor any estimate of value, and the consideration is merely nominal. It effected no change of risk ; if the property had been after-wards consumed by fire, the' loss would have fallen upon the builders. It contains no release of the contract of November 10th to build a ship and deliver her to Glover at Boston. On the contrary, it professes to be made to secure the performance of that contract; involving the absurdity of saying that a ship is sold to secure making the sale. Neither was this instrument a mortgage. It was not to be void on the performance of any thing by the supposed mortgager. It could not be defeated by him, but might by the supposed mortgagee. Jones v. Smith, 2 Ves. jun. 378; Metcalf’s Yelv. 179; Cortelyou v. Lansing, 2 Caines’s Cas. in Err. 202; Badlam v. Tucker, 1 .Pick. 399; Homes v. Crane, 2 Pick. 611; Powell on Mortg. 3, 4. Nor was it a pledge ; for that creates only a lien, and requires exclusive possession in the pledgee. There seems to be a lease, with a qualification that the lessors shall continue in possession of the demised premises. The "lease has been entirely disregarded by both parties, so that there has not been such an exclusive possession as is requisite to preserve the lien. Should a sheriff, after attaching an unfinished ship, permit the owners to go on in this manner to finish it, his lien would be lost. 2 Pick. 610 ; Montag. on Lien, 4. This instrument then had no operation. • It is an attempt to do what by law cannot be done. Glover ur dertook to be contractor for the vessel, and owner at the same time. He must be one or the other ; he cannot be both.
    Admitting that the attachment is ineffectual, still this action, being brought in the names of Glover and Lapham, cannot be sustained. If Lapham is properly made a party, Freeman ought not to have been omitted. But neither of them had any property in the ship. Lapham said he did not bring the action, and that he had nothing to do with the ship ; and he charged the iron work to Glover; and Glover wrote to me defendant, that the ship belonged to himself exclusively. They cannot be permitted to go behind these declarations, and set up a joint title. The action therefore should have been brought in the name of Glover alone. Stringer v. Murray, 2 Barn. & Aid. 248.
    
      Shaw and Bartlett, for the plaintiffs.
    The agreement of November 10th was a building contract and not a contract of sale, and no subsequent sale was" necessary to vest the property of the ship in Glover. Where a chattel is constructed by a joint contribution of labor and materials, the agreement, if there is one, settles the ownership, and the person who is to own becomes a debtor to the other for his proportion of labor and materials. The copper and iron work found by Glover were inserted as into his own vessel. The delivery of the ship to him at Boston, was merely a part of the labor to be performed. It is said that Glover was not to pay for the ship until she should be so delivered. It is true he reserved that right, but he in fact made advances, and it was expected, and by one of the contracts of November 10th was implied, that he should do so. Beaumont v. Crane, 14 Mass. R. 400 , Flyn v. Matthews, 1 Atk. 185 ; 1 Bell’s Comm. 80, 101, note ; Woods v. Russell, 5 Barn. & Aid. 942, and 1 Dowl. & Ryl. 587. Li the case of Merritt v. Johnson, 7 Johns. R. 473, it was deemed an important circumstance, that the ship was built on land in the occupation of the carpenter ; but the lease to Glover distinguishes the present case.
    The bill of sale of May 12th vested in Glover all the materials in the ship-yard, and so the vessel was built with his materials. This instrument was effectual, although the arti cles intended to pass were not specified, nor any prices fixed since, as the articles were transferred only as collateral secu rity, and were intended to be worked into the ship, the surplus would go to the Rogerses. It is said that part of these mate rials was used upon another vessel; but it does not appear that the plaintiff knew of it, and if what was fit was inserted into his vessel, it was unimportant. It is further objected, that there was no change of possession; but the lease operated a change.
    The conveyance made on the 20th of May was valid and sufficient. A bill of sale of the keel has immemorially been held to pass the vessel. 7 Johns. R. 473; 1 Bell’s Comm. 102. The value of the accession compared with that of the chattel itself, does not affect the property. 3 Dane’s Abr. i 07. Besides, the accessions here were gradual, each one by itself being comparatively of small value. But the principle of accession is not applicable to the case. It applies only where the accessions are accidental or by mistake. Here the Rogerses by agreement put the materials into the plaintiffs’ ship. Whether this last conveyance shall be called a sale, a mortgage or a pledge, is of no consequence. It was a conditional sale in pursuance of the original agreement and was founded on a sufficient consideration, and it vested in Glover a defeasible interest, which was to be absolute in case he should comply with his part of the contract, but otherwise was to be void. And as to the objection in respect to the lease, that the Rogerses continued to use the ship-yard as before, this was in pursuance of the express provisions of the lease, and for the purpose of accomplishing the general object of all these transactions. Bissell v. Hopkins, 3 Cowen, 166.
    If this were an action against the Rogerses to enforce their contract, it should be in the name of Glover alone ; but as it is against a trespasser, the only question is, whether Lapham was a joint owner of the property with Glover. They who own the property must join in the action. 2 Saund. 116a, note 2. If only one had brought the action, the defendant would be interested to see that one of two owners did not recover for the whole, lest he should be twice charged ; but that difficulty will here be avoided, as both of the plaintiffs will be estopped by the judgment. Sutton v. Buck, 2 Taunt. 302. The contract between Glover and Lapham was a dormant partnership, and the property acquired by one belongs to both. Leveck v. Shaftoe, 2 Esp. R. 468. It was not a sale, but a declaration of the proportions in which they were to be interested in the ship when it should come to either of them ; and it was evidence of that, notwithstanding it was not signed by Freeman. Or Glover may be considered as having acquired a- portion of the ship as the agent of Lapham, and the action may be in the name of the agent or of the principals In regard to Lapham’s saying that he did not authorize the action, he knew he had signed the agreement, but whether he was a part owner of the ship was a question of construction ; and as to the letter to the defendant, Glover intended merely to assert that the ship did not belong to the Rogerses. Whether the ship passed under the original contract or by the subsequent bill of sale, there being an agreement between Glover and Lapham that it should be their joint property, and they now asserting it to be so, a stranger shall not be allowed to turn them round on the point of a misjoinder, when to him it is immaterial who owns the ship, provided it does not belong to the Rogerses.
    
      June 21st.
    
    
      
       See Bonsey v. Amec, 8 Pick. 237 238.
    
   Parker J. C.

delivered the opinion of the Court. The question in this case is, in whom was the property of the ship at the time of attachment by the defendant. If in Edward and Henry Rogers, the attachment will prevail; if in the plaintiffs, the defendant was a trespasser and the action is maintained.

The plaintiffs claim title to the ship by virtue of the several conveyances and contracts between Glover on the one part and E. & H. Rogers on the other, bearing date November 10, 1825, and a written agreement made the same day between Glover and Lapham relative to the contract first mentioned ; also a contract between the two first named parties dated May 12, 1826, and another between the same parties made on the 20th of May.

The first instrument made on the 10th of November shaw's a contract for the building of a ship by the Rogerses for Glover. The former are to find all the carpenter’s materials and do all the carpenter’s work, to launch the ship and deliver her to Glover in the month of September following ; and he is to pay the stipulated price per ton in thirty days after such delivery.

The other instrument of the same date contains a lease of the yard in which the ship was intended to he built, and a covenant to convey the ship by bill of sale to Glover as soon as her keel should be laid, and before Glover should be required to make any payments on account of the ship.

It is obvious from these two instruments, that Glover was doubtful of the pecuniary circumstances of the Rogerses, and that expecting to advance money from time to time, as the work on. the ship should proceed, though this was not provided for in the contract, it was the intention of both parties that he should have a lien on the ship for such advances.

The contract however was insufficient for this purpose, for by its legal effect the property in the ship would remain in the Rogerses until she should be delivered in Boston pursuant to its terms, and Glover had no security for the moneys he should advance, in the ship or the materials from which she was to be constructed.

Aware of this in all probability, an attempt was made to obtain the desired security by the instrument which bears date May 12th, but this perhaps was equally inoperative, notwithstanding Glover, as acknowledged in the instrument, had advanced a large sum of money on account of the ship ; for at that time it does not appear that the ship was begun to be built, or that the materials were then selected and separated from great quantities of ship timber then in the yard, much more than would be required for the building of the ship ; and there is no specification in the instrument, of the portions of timber which were to be appropriated as materials for this particular ship. Nothing more could pass by virtue of this instrument, than such sticks of timber or other materials as were then set apart and appropriated for the construction of the particular vessel which was the subject of their original contract.

But on the 20th of May there was something specific to convey, which was the subject of the instrument made on that day, and it is by virtue of this instrument, if at all, that the plaintiffs can support their title to the ship.

This instrument was intended to execute the covenant of the Rogerses in one of the instruments of the 10th of November preceding, viz. “ to make and execute to said Glover a good and sufficient conveyance and bill of sale of said vessel when the keel thereof shall be laid pursuant to the other instrument made on the same day ; ” and the question is, whether the purposes and intentions of the parties were lawful, and have been lawfully executed, so as to vest the ship then begun to be built, in Glover, so that its accruing form and value should be his, and not liable to the claims of the creditors of t^le Uogerses after that time.

That the purpose was lawful cannot be questioned, for it. was to enable the artificer without funds to prosecute his labor with the funds of the merchant, and to give to the latter that security without which, according to all probability, the work would be stopped. Originally the contract might have been, that the merchant should find all the materials, and the artificer all the labor, in which case the property of the ship would be in the merchant; and under such a contract as the parties did enter into, there can be no doubt, that at any stage of the process it was competent to the parties to change their rela tian to each other, so that the merchant should become the owner, or should acquire a lien on the ship, or the materials from which she was to be composed, if done in good faith and in such form as will be recognised by the laws and rules of conveyancing.

The only grounds then which can be taken by creditors who see fit to attach, are to show that the means adopted to carry such intentions into effect are imperfect, or if perfect in form, that the transaction is fraudulent, being done with design to delay or defeat them of their just security under our attachment laws. Both these grounds have been taken on this occasion, and it is now to be decided with what success.

On the 20th of May, 1828, when the bill of sale was executed, the keel of the ship had been laid, and her stem and stern posts had been raised, and some frames had been got out and put together but not raised ; but most of the timbers were up, a few days afterwards, when Glover took symbolical possession under his bill of sale.

There was a good and valuable consideration for the transfer, for Glover had advanced 1000 dollars in the March preceding, and had continued to make advances. The Rogerses were under covenant to make the transfer, and they had a perfect right to do it, there being no attachment or other lien on the property. The conveyance is “of the keel and other parts of an unfinished vessel, now lying on the stocks in the ship-yard of said E. & H. Rogers in Medford, being the same vessel contracted to be built by the instrument aforesaid,” that is, the contract of November 10th. Between the parties such a conveyance was perfectly valid, and from that time every stick of timber that went into the ship, and all that was prepared to be put in, became the property of Glover. The rule of the civil law mentioned in the argument will exactly apply to such a case, proprietas totius navis carina causara sequitur. As if the builder of a house, the frame of which has been raised, should sell the unfinished house, and then proceed to cover and finish it, the house when built, as between those two, would belong to the purchaser of the frame, and more especially if there had been an antecedent sale of the materials with which the house was to be built. And such sale may be absolute or conditional, according to the real bargain between the parties.

It is obvious from the recital in this instrument, that this sale was intended only for security to Glover for the money advanced, and to be advanced. This intention is clearly expressed, and therefore the continuing of the Rogerses to work on the vessel without any new agreement as to the terms, is no evidence of any covert bargain different from that which is expressed. They considered the original contract still in force ; the vessel was to be built, launched, delivered and paid for, according to the terms of it. But the property was changed, in order to give security, and this was innocent and proper.

Whether this instrument constituted a technical mortgage or not, it is immaterial to consider ; it partook of the nature of a mortgage so far as related to the Rogerses’ interest in the vessel beyond the advances of Glover, and of a conditional sale, so far as related to the obligation of Glover to pay for her according to the original contract. Glover had the right of possession until the time of payment came, and then, if he paid, he had the absolute property ; if he did not pay then, the deed was void, the property revested in the Rogerses. No-are the rights of creditors impaired by such transactions, fo ■ though they cannot by attachment take the vessel out of the possession of such a vendee, they may, by virtue of the trustee process, secure in the hands of the vendee any balance which may be due to the vendor.

The instrument then is valid in itself; it is not per se fraudulent and void, and cannot be avoided but by the verdict of a jury, founded on the proof of a fraudulent intent towards creditors. This branch of the case has been settled by the proper forum, and therefore there is no occasion to consider the various facts reported which have a relation only to that question. The verdict on this point is not supposed to be against the evidence. The fact of not making a public declaration of a transaction of this kind has no tendency to prove fraud, and the evidence does not show any designed concealment.

With respect to the joining of Lapham in the action, we do not perceive any legal objection to it. Glover made all the contracts with the Rogerses ; as to them he is the sole owner. But Lapham on the same day that the first contract was made, agreed to be an owner with Glover and Freeman in the proportion of one fourth. Glover has a right to consider him so, and it was not necessary that there should be a conveyance from the Rogerses to him to constitute him owner, sufficiently for the purpose of maintaining an action. The ownership of the vessel until she is registered may remain altogether in verbal engagements. If two or three. agree to have a ship built, they will be presumed to be owners equally, unless some different proportion is agreed on. Lapham, by virtue of his contract with Glover, could claim and maintain his right to a quarter of the ship ; and if Glover, by virtue of his conveyance from the Rogerses, snould insist upon holding the whole, a court of equity would compel him to convey. And although it was intended that Freeman also should be an owner, his failure to become so has no other effect than to make Glover the owner of three fourths, leaving one fourth to Lapham, ac cording to his contract with Glover.

Judgment according to verdict 
      
       See Sumner v. Hamlet, 12 Pick. 82,83; Johnson v. Hunt, 11 Wendell, 135,
     
      
       See 2 Kent’s Comm. (3d ed.) 361, 362.
     